Simmons v. Sorenson
| Decision Date | 22 March 1954 |
| Docket Number | No. 3921,3921 |
| Citation | 71 So.2d 377 |
| Parties | SIMMONS v. SORENSON. |
| Court | Court of Appeal of Louisiana — District of US |
Talley & Anthony, Bogalusa, for plaintiff-appellant.
C. Ellis Ott, Bogalusa, for defendant-appellant.
Plaintiff has filed this suit as the result of an automobile accident on December 30, 1952 at approximately 5:30 a. m. on Louisiana Highway 58 which runs between Bogalusa and Slidell. Plaintiff was alone in his truck traveling toward Slidell on the inside of a curve in the road, and the defendant's minor son was approaching from the opposite direction coming around the outside of the curve. The latter was accompanied by two young men and the four were the only actual witnesses to the accident.
The Judge of the lower court held that the versions of the accident as testified to by the witnesses was in great conflict and he was unable from the testimony to render a judgment either in favor of plaintiff or the defendant on his reconventional demand. In other words, neither had satisfied him to a legal certainty, and he further held that since the defendant's minor son was a member of the armed forces and home on furlough the defendant was relieved from liability on that ground.
Judgment the accordingly rendered rejecting plaintiff's suit on the main demand, and rejecting the reconventional demand of the defendant, from which judgment both plaintiff and defendant have appealed.
It is shown that the defendant's son was a member of the armed forces, having enlisted with the signed consent of his parents, and at the time of the accident was home on furlough. The night before the had borrowed the defendant's automobile, picked up two friends who were also members of the armed forces, had gone to Bogalusa about 7:00 p. m. to various restaurants, and later on had gone to a night club south of Bogalusa, had visited there for several hours, then on to Slidell to the White Kitchen, a restaurant and bar. They had left the White Kitchen in the early morning hours on the date of the accident headed toward New Orleans, had car trouble and decided to return to Bogalusa, and it was on their way back between 5:00 and 6:00 a. m. that they met the plaintiff in this curve and the collision resulted.
While there is a charge of intoxication, and it might seem strange that these young men stayed out all night visiting restaurants and bars, the only proof of the extent of their drinking is that the plaintiff's son, the driver of the car, consumed four beers. It is plaintiff's positive testimony that he saw the young men after the accident throwing a paper bag out of the car which was later picked up by him and given to the highway officer, and it contained cans of beer. There was testimony that beer cans, without any number being given, were raked or thrown out of the car near the car, by the boys after the wreck. On the other hand, there was a witness who came along immediately after the accident and he did not testify that anyone was intoxicated. The police officer could not testify to that effect. It is true he did not get there until several hours after the accident occurred. From the testimony, the fact must be accepted that the young man was not intoxicated.
Plaintiff testified that as he rounded the curve on his side of the center line he saw the defendant's car approaching but being driven across the center line in his lane of traffic, as he expressed it, 'cutting the curve,' and that he pulled as far over to the right as possible and that as the black top was very slick and wet from rain the operator of defendant's car, when he saw he was going to strike plaintiff's truck, apparently applied his brakes and skidded, causing the rear part of defendant's car to strike the left front fender, wheel, and 'knock the whole side crooked, bent the suspension back, the fender and running board off the whole side.'
After the accident the plaintiff's truck went off on its own right side of the road, while the defendant's car went approximately 20 or 25 feet and came to rest on the left hand or plaintiff's side of the road at about a 45 degree angle.
The plaintiff offered as a witness the highway patrolman who testified he was called to this accident at approximately 5:30 a. m.; it was raining hard and the black topped road was slippery; that when he arrived there he talked to defendant's son as well as plaintiff, and that the latter had given him the same version of the accident as stated above. In reply to a query as to what the defendant's son had to say as to how the accident occurred he answered:
However, in another portion of his...
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Williams v. City of Baton Rouge
...is lawfully summoned to serve in a posse comitatus, Coats v. Roberts, 35 La.Ann. 891 (1883), or in the armed forces, Simmons v. Sorenson, 71 So.2d 377 (La.App.1954); Redd v. Bohannon, 166 So.2d 362 (La.App.1964). The instant case is not one where the authority of the state has superseded th......
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Williams v. City of Baton Rouge, 7035
...(Italics ours.)' One exception to the above rule is where the minor son is a member of and serving with the Armed Forces. Simmons v. Sorenson, La.App., 71 So.2d 377; Redd v. Bohannon, La.App., 166 So.2d 362. Where a minor was lawfully summoned by a sheriff to serve as a member of a posse co......
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