Vitale v. Checker Cab Co., Inc.

• Decision Date: 07 May 1928
• Docket Number: 29146
• Court: Louisiana Supreme Court
• Parties: VITALE v. CHECKER CAB CO., Inc. In re CHECKER CAB CO

117 So. 579

166 La. 527

VITALE v. CHECKER CAB CO., Inc.

In re CHECKER CAB CO

No. 29146

Supreme Court of Louisiana

May 7, 1928

Rehearing Denied June 4, 1928

Amended and affirmed.

Paul L Fourchy, of New Orleans (J. L. Warren Woodville, of New Orleans, of counsel, and Benj. W. Kernan, and Dufour, Rosen &amp Kammer, all of New Orleans, amicus curiae), for applicant.

George Piazza, of New Orleans, for respondent.

THOMPSON, J. O'NIELL, C. J., concurs.

OPINION

THOMPSON, J.

The plaintiff received serious physical injuries, and her husband was killed, in a collision between a motor truck driven by plaintiff's husband and a taxicab operated by an employee of defendant company.

The plaintiff and her husband were only 20 years of age, and had been married a little over a month. The husband was on his usual rounds, delivering bread to his customers, and his young wife was traveling with him. The husband lived about 40 hours after the accident and the plaintiff suffered severe pain from her injuries for several months.

This suit is to recover for her own injury and suffering, from the pain and suffering of her husband, to which right of action she succeeded, and for mental suffering and loss sustained by her on account of the death of her husband.

The collision occurred at the intersection of Banks and Broad streets, this city. Each of said streets has two driveways, with a neutral ground in the middle.

The cab of defendant proceeded along the upper side of Banks street, in the direction leading from the lake side to the river. The truck was on the lake side of Broad street, and was going uptown toward Tulane avenue. The two vehicles came together in a violent impact just beyond where Banks street completes the crossing on the lake side of Broad. The right front axle of the truck was bent into almost a sharp curve, and the truck was turned over, while the cab, in the language of the trial judge, ran across the neutral ground to the riverside roadway of Broad street, and on to an oil station on the uptown river corner of Broad and Banks, where it struck a brick pillar in front of the oil station, and swerved around, and stopped in the intersection of Broad and Banks streets.

There were quite a number of eyewitnesses, who testified in the case both for the plaintiff and for the defendant, and their testimony is conflicting and impossible of reconciliation. The trial judge stated that, in his nine years' experience on the bench, he had never had a case involving only questions of fact which "puzzled and worried" him as much as the instant one. His final conclusion was, however, that the evidence failed to establish that the proximate cause of the collision was attributable to the defendant, and he rejected the plaintiff's demand. In concluding his reasons, the trial judge says:

"It is lucky for me that we have three capable, industrious, and painstaking gentlemen composing the bench of the Court of Appeal, to whom this appeal will go. The testimony in the case will be written out, and they will review my work.

"I therefore, with full confidence that the Court of Appeal will correct any error that I make, if I make any, order a judgment to be entered in favor of the defendant."

The Court of Appeal, after a careful study of the record, found that both the driver of the truck and of the cab were guilty of negligence, and that the concurring negligence of the two continued down to the collision.

The court held, however, as a matter of law, that the contributory negligence of plaintiff's husband was not imputable to her, and was no bar to her recovery for her own personal injuries and for the death of her husband.

We find no manifest error in the conclusion of fact of the Court of Appeal, and therefore accept it.

We may add, however, that the surrounding circumstances, the position of the truck and the cab when approaching the street intersection, and the disastrous and fatal result of the collision, tend strongly to indicate that each driver was proceeding at an undue speed at such a prominent street intersection, and with an utter indifference to the safety of the public and to that of the other driver as well as of himself. The impact must have, indeed, been violent and terrific, considering that the axle of the truck was so badly bent and the truck turned over, while the cab went wild and uncontrollable a distance of more than 150 feet, its movement only to be checked by a brick pillar at an oil station.

The legal question presented, and the one upon which the case was called up for review, is whether or not the concurring negligence of the husband is imputable to the wife, and is a bar to her recovery for her own physical injuries and for the loss occasioned by the death of her husband.

It is conceded that, where the husband is guilty of contributory negligence which causedhis death, the widow cannot recover for the pain and suffering endured by him, upon the principle that, being at fault himself, he could not recover if he had continued to live, and no greater right is transmitted under the law to his widow.

It is also conceded, practically, at least, that the plaintiff is entitled to recover for the physical personal injuries received by her, notwithstanding the contributory negligence of her husband.

We confess, however, that we have been unable to find in our own jurisprudence any case in which this precise question has been considered.

The rule is well settled that the negligence of a driver of a vehicle is not imputable to a guest of such driver, and is no bar to an action by the guest for recovery of such damage as may have been occasioned by such negligence. Churchill v. T. & P. Ry. Co., 151 La. 726, 92 So. 314; Cuneo v. N. O. R. & Light Co., 147 La. 1012, 86 So. 477; Broussard v. La. Western, 140 La. 517, 73 So. 606.

In none of these cases, and in no case we have been able to find, was the question involved as to whether the wife may be considered as a guest, when traveling in a vehicle driven by and under the exclusive control of her husband.

The great weight of authority in other jurisdictions is to the effect, however, that the wife, when traveling in a vehicle driven by and under the control of her husband, is in no different position from that which she would occupy if the driver of the vehicle had been a person other than the husband.

Thus in 20 R. C. L. p. 151, it is said:

"There appears to be little or no dissent to the proposition that the negligence of the husband is not to be imputed to the wife, unless he is her agent in the matter in hand, or they are jointly engaged in the prosecution of a common enterprise.

"The mere existence of the marital relation will not have the effect to impute the negligence of the husband or wife to the other."

And in the same work (volume 13, p. 1438) it is said:

"The better view, however, is that, although a wife is injured while riding with her husband, his negligence will not, by reason merely of the marriage relation, be imputed to her, so as to preclude her recovery for the injuries received; that in such a case the mere relation of husband and wife does not make the husband the agent of his wife, so as to render his negligence imputable to her, and there is no sound reason why the prevailing view that the negligence of a driver is not to be imputed to one riding with him does not apply to a wife riding with her husband, nor why she may not be in such a case a mere passive guest, without authority to direct or control his movements, and without reason to suspect his prudence or skill."

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