Surgan v. Parker, 5679

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtTALIAFERRO, Judge.
Citation181 So. 86
PartiesSURGAN v. PARKER
Docket Number5679
Decision Date01 April 1938

181 So. 86

SURGAN
v.
PARKER

No. 5679

Court of Appeal of Louisiana, Second Circuit.

April 1, 1938


M. T. Monsour, of Shreveport, for appellant.

Irion & Switzer and Henry F. Turner, all of Shreveport, for appellee.

OPINION

TALIAFERRO, Judge. [181 So. 87]

A Packard automobile driven by L. E. Parker, in which plaintiff was riding as a guest, collided with another car near Bradley in the state of Arkansas, and plaintiff suffered serious physical injuries therefrom. Both parties were then and are now residents of the city of Shreveport, La.

Plaintiff sues Parker to recover damages. He alleges that the collision and resultant injuries to him were caused solely by the gross negligence of Parker. He further alleges that Parker "induced" him to accompany him merely as a guest on the trip to Memphis, Tenn., where Parker intended to transact some business personal to himself; that he suddenly began to drive the car at an excessive rate of speed; that plaintiff warned him of the danger of doing so, and he then reduced the car's speed, but immediately thereafter, when on a straightaway, increased the speed to 60 miles per hour and began driving on the left-hand side of the road; that plaintiff again protested against this manner of operating the car, and that defendant thereupon attempted to resume his side of the road, but before his efforts succeeded, his car was struck by an automobile coming in the opposite direction. Summarizing, the petition declares that Parker's gross negligence consisted of the following acts, viz.:

"1. The excessive rate of speed at which L. E. Parker was driving.

"2. Suddenly and without warning, cutting over to the left hand side of the road; in driving along the left hand side of the road; in failing to keep a proper and careful lookout; failing to see the approach of the automobile in the opposite direction; in failing to heed the protests of the plaintiff."

Defendant excepted to the petition on the ground that it did not set forth a cause or right of action.

The following stipulation of counsel appears in the record:

"1. It is admitted by the parties hereto that the accident herein sued upon occurred in the State of Arkansas and that it occurred on a graveled highway;

"2. It is agreed by plaintiff that defendant may prove the law of the State of Arkansas by introducing a copy thereof under the certificate of the Secretary of State of the State of Arkansas, and that said certified copy attached hereto may be considered by the Court for all purposes in this suit."

In keeping with said stipulation, there was filed in evidence on trial of the exception, a copy of Act No. 179, page 481 of 1935, General Assembly of Arkansas, certified to by the Secretary of State of that state. Deleting those words and sentences unnecessary for intelligent consideration of the sole issue tendered by the exception, said act is as follows, to wit: "No person transported (3)5C by the (3)5C operator of a motor vehicle as a guest [181 So. 88] (3)5C shall have a cause of action for damages against such (3)5C operator (3)5C for personal injury (3)5C unless such injury shall have been caused by the willful misconduct of such (3)5C operator." Section 1.

The issue raised by the exception and passed on by the lower court is: That under the laws of Arkansas, a guest injured by the collision or upset of the automobile in which he is riding has no cause of action against the car's operator to recover damages for personal injuries unless such injuries shall have been caused by the willful misconduct of such operator, and that the allegations of the petition do not disclose willful misconduct on defendant's part as the cause of the collision.

The lower court sustained the exception and dismissed the suit. Plaintiff prosecutes appeal.

Plaintiff's counsel refer to and discuss Act No. 61, page 138 of 1935, General Assembly of Arkansas, as having bearing upon the liability of car operators to guests injured while riding with them, and argue that this act is controlling in the case at bar. We are not sure from this discussion and the quoted portions of this act that there is any conflict between it and Act No. 179 adopted the same year, so far as concerns the present case. At all events, there is no proof in the record of the existence and contents of said Act No. 61; and we shall therefore pass upon the case as though Act No. 179 were the last expression of the legislative will of the state of Arkansas on the subject. Statutory laws of sister states must be proved as facts in a case. Judicial cognizance of such facts will not be taken. Succession of Marinoni, 177 La. 592, 148 So. 888; Taylor, Bank Com'r, v. Terzia, 171 La. 1040, 132 So. 781; Rush v. Landers, 107 La. 549, 32 So. 95, 57 L.R.A. 353.

Prior to the adoption of said Act No. 179, as regards the right of invited...

To continue reading

Request your trial
12 practice notes
  • Johnson v. St. Paul Mercury Ins. Co., No. 49732
    • United States
    • Supreme Court of Louisiana
    • March 30, 1970
    ...cert. denied; Mock v. Maryland Casualty Co., 6 So.2d 199 (La.App.1942); Polmer v. Polmer, 181 So. 200 (La.App.1938); Surgan v. Parker, 181 So. 86 (La.App.1938). The federal courts of this State have likewise correctly applied the doctrine of Lex loci delicti in their adjudications involving......
  • Hatfield v. New Mexico State Board of Registration for Professional Engineers and Land Surveyors, No. 5875
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 29, 1955
    ...bad behavior; unlawful behavior or conduct; malfeasance. Sanford v. Grady, 1 Cal.App.2d 365, 36 P.2d 652; Surgan v. Parker, La.App., 181 So. 86, 89. * * * 'Misconduct' is defined as 'wrong conduct; bad behavior; mismanagement.' The synonyms are 'misbehavior; misdemeanor; mismanagement; misd......
  • Covington v. Carley, 35700.
    • United States
    • United States State Supreme Court of Mississippi
    • November 27, 1944
    ...evidence of negligence. In the statute "wilful" and "wanton" are of equal gravity and are of equal legal import, Surgan v. Parker, La.App., 181 So. 86. Where the misconduct is wilful, there is an intentional injury. If it is wanton, there is an intentional and wrongful act or omission whose......
  • Mason v. Shook, No. 41713
    • United States
    • United States State Supreme Court of Mississippi
    • March 6, 1961
    ...the Carley case, said: 'In the statute 'wilful' and 'wanton' are of equal gravity and are of equal legal import, Surgan v. Parker, La.App., 181 So. 86. Where the misconduct is wilful, there is an intentional injury. If it is wanton, there is an intentional and wrongful act or omission whose......
  • Request a trial to view additional results
12 cases
  • Johnson v. St. Paul Mercury Ins. Co., No. 49732
    • United States
    • Supreme Court of Louisiana
    • March 30, 1970
    ...cert. denied; Mock v. Maryland Casualty Co., 6 So.2d 199 (La.App.1942); Polmer v. Polmer, 181 So. 200 (La.App.1938); Surgan v. Parker, 181 So. 86 (La.App.1938). The federal courts of this State have likewise correctly applied the doctrine of Lex loci delicti in their adjudications involving......
  • Hatfield v. New Mexico State Board of Registration for Professional Engineers and Land Surveyors, No. 5875
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 29, 1955
    ...bad behavior; unlawful behavior or conduct; malfeasance. Sanford v. Grady, 1 Cal.App.2d 365, 36 P.2d 652; Surgan v. Parker, La.App., 181 So. 86, 89. * * * 'Misconduct' is defined as 'wrong conduct; bad behavior; mismanagement.' The synonyms are 'misbehavior; misdemeanor; mismanagement; misd......
  • Covington v. Carley, 35700.
    • United States
    • United States State Supreme Court of Mississippi
    • November 27, 1944
    ...evidence of negligence. In the statute "wilful" and "wanton" are of equal gravity and are of equal legal import, Surgan v. Parker, La.App., 181 So. 86. Where the misconduct is wilful, there is an intentional injury. If it is wanton, there is an intentional and wrongful act or omission whose......
  • Mason v. Shook, No. 41713
    • United States
    • United States State Supreme Court of Mississippi
    • March 6, 1961
    ...the Carley case, said: 'In the statute 'wilful' and 'wanton' are of equal gravity and are of equal legal import, Surgan v. Parker, La.App., 181 So. 86. Where the misconduct is wilful, there is an intentional injury. If it is wanton, there is an intentional and wrongful act or omission whose......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT