Savoie v. Walker

• Decision Date: 05 October 1938
• Docket Number: 1875
• Citation: 183 So. 530
• Court: Court of Appeal of Louisiana — District of US
• Parties: SAVOIE v. WALKER

183 So. 530

SAVOIE v. WALKER

No. 1875

Court of Appeal of Louisiana, First Circuit.

October 5, 1938

Griffin T. Hawkins and J. J. Tritico, both of Lake Charles and E. S. Muse, of St. Francisville, for appellant.

Borron Owen & Borron, of Baton Rouge, and James H. Kilbourne, of St Francisville, for appellee.

OPINION

OTT, Judge.

Plaintiff sues for damages in the sum of $ 28,405 for personal injuries received by him on November 23, 1935, when he was struck by an automobile driven by Magruder Walker, the minor son of the defendant. The accident happened while plaintiff, a member of the C. C.C. camp located a short distance north of St. Francisville, together with four or five companions from the camp, was walking south on Highway # 61 on their way to St. Francisville about 7:30 P. M. Plaintiff sustained a comminuted fracture of the right femur, a compound fracture of both bones of the right leg between the knee and ankle, and injury to his right knee, and other injuries set out in his petition.

Robert H. Campbell, a member of the group of C. C.C. boys walking to town that night with Savoie, was also struck by the same automobile and received injuries less serious than those received by Savoie. Campbell sues for damages in the sum of $ 1,730, and the two cases were consolidated for trial in the lower court, but separate judgments were entered in each. The allegations in both petitions are the same, except as to the nature and extent of the injuries received and the amount of damages claimed. What is said in this opinion on the question of liability, vel non, will also apply to the case of Campbell against the same defendant, but separate comments will be made on the nature and extent of the injures received, and separate decrees will be entered in each case.

The petition in each case charges that the defendant's minor son was driving an automobile south on the paved highway about one mile north of St. Francisville; that plaintiff and several companions were walking south down said highway, on the east side, and entirely off the eighteen foot paved portion of the road; that the automobile driven by defendant's son was suddenly driven off the concrete portion of said highway, striking plaintiff, as well as two of his companions; that the car driven by defendant's said son was going in the same direction as plaintiff and his companions, and just before the said car reached him and his companions, it was over on its right side of the highway, but when said car was near plaintiff and his companions walking on the east or left shoulder of the road, the car was suddenly swerved to its left and traveled across the paved portion of the road and struck plaintiff and two of his companions, who at the time were well to the left and off the paved portion of the road; that the driver of said car did not stop after striking plaintiff and his two companions; that there were no vehicles or obstructions at the point where plaintiff was struck, and that said Magruder Walker "deliberately and intentionally left his proper, or right hand, side of the paved portion of the highway, with the view of either striking petitioner and his companions or frightening them into believing that he was intending so to do."

The allegations are also made that said Magruder Walker was driving said car at a reckless and excessive rate of speed, in excess of fifty miles per hour; that he failed to sound his horn or give any warning that he intended to dart suddenly from his side of the road and cross over and strike plaintiff and his companions on the left side of the highway.

Defendant admits that the car which struck plaintiff was driven by his minor son who was then living with him; but he denies that his said son was guilty of any negligence. He alleges that his said son was driving south on said highway in company with a companion at a reasonable rate of speed; that his said son approached another car going in the same direction at about 30 miles per hour, and, desiring to pass the car in front of him, his said son guided his car gradually to the left side of the road, at the same time sounding his horn as a signal to pass said car to the left; that the lights on his car were burning brightly, and his said son observed that the traffic lane on his left was clear within the radius of his headlights; that as the automobile driven by his said son passed to the left traffic lane and was passing the other car, there appeared immediately in front of his said son several pedestrians who occupied a portion of the left traffic lane, and at a distance too close for his said son to stop his car; that his said son pulled his car back to the right to avoid striking said pedestrians, and that the rear part of his car swung around and came in contact with one or more of said pedestrians.

In the alternative and in case it is found that his said son was guilty of any negligence, defendant alleges contributory negligence on the part of the plaintiff in that he was walking on the paved portion of the road; that he failed to heed the horn and lights from the oncoming car, and did not use proper means for his own safety.

An exception of no cause of action was filed by the defendant which was referred to the merits and overruled at the time the case was decided on the merits. The judgment below rejected the demands of the plaintiff, and he has appealed.

The exception was properly overruled. The allegations of the petition show that the accident was caused solely by the deliberate and intentional act of defendant's son in driving his car from the right side of the road over to the left side, striking plaintiff, and in the careless and reckless manner defendant's son operated the automobile which he was driving. The factual situation set up in the petition, which must be accepted as true for the purpose of the exception, does not show any act of negligence or want of care on the part of plaintiff that could have contributed to the accident.

Defendant's minor son being capable of operating on the public highways such a dangerous instrumentality as a motor vehicle, he is capable of committing an offense or quasi offense for which his father with whom he resides is responsible under the plain provisions of Article 2318 of the Civil Code. Marionneaux, Tutrix, v. Brugier, 35 La.Ann. 13; Sutton et al. v. Champagne et al., 141 La. 469, 75 So. 209.

After a considerable part of the evidence had been taken, defendant's counsel objected to the introduction of any evidence to show actual negligence on the part of defendant's minor son for the reason that the petition alleges that the acts of said minor were willful, deliberate and intentional; that under such allegations of intentional and deliberate wrong-doing on the part of said minor, simple and ordinary negligence cannot be proved. The testimony was admitted subject to the objection. We think the evidence was properly admitted.

While the petition does charge that defendant's son deliberately and intentionally left his right side of the road and came over on the left side with the view of either striking plaintiff or frightening him, there are other allegations, such as the failure to sound his horn and give a warning and his excessive speed, which are not alleged to have been willful, deliberate and intentional, and these latter acts, according to the petition, were merely careless, or at most, grossly negligent. However, if it be construed from the allegations of the petition taken together, that all of the acts of defendant's son which caused or contributed to the accident were willfully, deliberately and intentionally done, as contended by defendant's counsel, still the evidence was admissible to prove these acts.

Under our law, we have no such technical rules of pleading as prevail in some states which still retain part of the common law system of pleading. In an action of trespass under the common law system, the injury for which the action is brought must have been committed with force, actual or implied, or the injury resulting from the act must have been immediate, and not merely consequential. Any act done willfully and deliberately with the intention to injure another would give rise to an action in trespass, whereas, an act done or omitted through simple negligence of either omission or commission would support an action on the case. As an injury cannot be caused willfully and deliberately and merely negligently at the same time, the action of trespass based on the willful act could not be joined in the same count with an action on the case based on simple negligence. 9 Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Ed., page 246, §5985.

These distinctions are not recognized in the civil law. Article 2315 of our Civil Code provides that every act whatever of man (whether deliberate, intentional, or merely negligent) that causes damage to another, obliges him by whose fault (not merely negligence) it happened to repair it. The act does not give rise to an action unless it is coupled with a fault. This fault that causes the damage, or accompanies the act causing the damage, may be deliberate, willful and intentional (in which case it may be a criminal offense) or it may be an act arising from mere negligence. We quote from the first paragraph of the syllabus in Eclipse Towboat Company v. Pontchartrain R. R. Company, 24 La.Ann. 1, as follows: "In the rule that "every act whatever of man that causes damage to another obliges him by whose fault it happened to...