*1 might gas vapor which con- carried a water pipes' frosting inside service and cause dense weather conditions' or meters cases knowledge, immoderate. With this became render; duty together their admitted service, earnestly adequate submit to. gas we its, utility has defaulted the court failing him plaintiff inform to this exposure danger attending of. the by the testi- pipes. shown service It company kept ther- mony accurate during period readings cold' mometrie during January In fact 1930. weather January day reading for the had their a cold knew admitted
1930. Mr. Smith Shreveport approaching wave yet warn- vicinity thereof, a word given Bizet, given would| damage surely prevented he' most
sustained.’ : granting knew "defendant “Even prior (that to this pipes would freeze point just case) we cannot legal duty its customers to all of owed fact, apprise failure to them responsible.’’ making
which is reasons, foregoing Eor affirmed, appellant’s
appealed from cost. J.,
O’NIELL, C. dissents.
(138 871) v. SMITH et al.
LORANCE
GRANTHAM SAME.
Nos. 31298.
Nov. 1931.
Rehearing Denied Jan. Harvey Ellis, E. Ellis Frank B.
Covington, applicants. Simmons,
Lewis L. and J. Monroe appellants Mr. and both of Morgan. Randolph W. R. Smith and *2 Benj. Heintz, M. Fred Miller and J. appellee J. Kendall. R. ODOM,J. damage growing in- These are suits out of juries in an sustained automobile collision January placе which took on
public highway Covington runs belong- Mandeville, La., coupé between a Ford Smith, to Mr. and Mrs. W. R. Chevrolet car Ken- owned and driven R. J. dall. During January afternoon late on Smith, Alphon- Morgan, Walter Clark Lorance, sine and Mrs. left Menant Adelia Tamany parish Mandeville in- St. Covington picture show, riding to attend coupé, seat, a Ford a car with all riding together, traveling four on the seat on graveled highway twenty-four wide. feet way back, o’clock, While on their about nine
their car on collided the road with a Chevrolet owned driven R. Al- J. Kendall. phonsine injured, Lorance was Men- and Mrs. instantly ant killed. The Ford car Smith, per- R. owned W. who had mitted his minor son Walter it. At to use being time the accident the car Morgan, the minor son of driven Clark Randolph Morgan. Menant, killed, Mrs. who was Adelia years old, seven minor child about who grandfather represented tutor. dative Lorance, Alphonsine mother Jennie years Lorance, old, was fifteen child, prosecute tutor Mrs. Menant’s dative See present against parents approaching Wal- suits another car was seen cen- Morgan against R. ter ter Smith Clark dan- road around a alleged gerous damages, being curve, J. Kendall for was in violation all of which law; Morgan Mrs. Menant were Lorance and of Clark imputable the invited Walter Smith car of to Walter Smith. injury and Clark and that their neg- “XVI. That R. J. Kendall solely joint negligence death were due to the ligence driving curve around'a Smith, Morgan, and Kendall. hour, twenty particular- at a miles an specific charged ly foggy night, driving acts of road, particularly in articles the defendants set out are side of 14, 15, 16, petition, op- approaching and 17 Mrs. Lorance’s saw said Ford car from the posite going, identical are with those found direction in which he was petitions, being continuing other said as follows: articles to drive his car in center of collision, up said road all to the time of the damages re- “That said Collision and the of which was violation law. gross sulting therefrom were due gence Morgan Smith, R. Walter “XVII. That manner in which due to the Kendall, J. operated, this: said cars hereinabove forth, Morgan, Walter set the said Clark “That Clark Smith and R. J. Kendall were each per at the rate hour miles or more directly cоntributing to said accident night, go- accident, the time of said *3 guilty minor, said Lorance was not ing entering decline, down a a accident, contributing' any in to said wise bridge curve which a lead to narrow concrete injuries.” which in her resulted Creek; Ford across Pantchatalawa that said first, Morgan is, was accommodation runabout built for the The defense Smith and persons persons, negli- any four whereas there were that their sons not were making runabout, thereby resulting in gence, said in- collision and but that the impossible, solely condition jury due to the crowdеd the fault and were due operate car, said gence Kendall, for Clark said the driver of Chevrolet particularly safety, unlaw- at an car with car, and, second, Mrs. that Miss Lorance and night. foggy speed, guests ful rate of of their Menant were not the invited joy sons, out on a but that all were four guilty of “XV. That Walter Smith purpose; a a the ride was common persons gross negligence inviting as in three joint joint enterprise, and that the four for a runabout built his to ride in adventurers, held therefore it should and consenting allowing to Clark and in and alleged, negligent, as their sons were Morgan’s driving in con- said car its crowded agents two, other and unlawful dition at an excessive They especi- for that reason. recover hour, fifty per speed aon more miles ally deny plaintiffs’ allegation Lor- that Miss night, especially and down decline ance and Mrs. Menant were not of con- approached entering narrow which a curve tributory negligence. Creek, bridge Pontchatalawa across concrete consenting allowing Kendall, to said his As to is that he was defense speed continuing way car, Morgan’s negligent handling said rate of with- of his being alleges resulting speed said car reduced when and he that the accident out the opera- Ford, grossly injury solely negligent were due driving grade speed tion. He was car. down driver of fifty hour, greatly speed above miles pe- excepted Each the defendants misty by law, foggy, excess of that fixed on ground that she Mrs. on tition Lorance pay- night dangerous point road, at a on the name, not, bring the suit own her any but attention to whether little if husband, child, whom minor her from her side, wrong center, on his or on the divоrced, being present not she was not judge correctly side of trial the road. The joining in the suit. opinion: his<written judgment granted The district court “The Court is satisfied all testi- appealed and defendants mony Ford roadster was driv- judg- Appeal, circuit, First Court of possibly en at all the it could appealed Mrs. Lorance in favor ment make; young people in there were out ground that the on technical reversed goodtime, for a and the Court satisfied that brought father have been suit-should paying but little if attention minor, af- mother of the and not either their to their on plaintiff. as to the other firmed road.” applied and defendants Lorance Referring again toas review, granted, court for writs of operators Ford, Morgan response us in cases are before says driving he was on side of writs. car, pass road and had room but other cases Under view we take of the that about the time the two ears met merits, unnecessary to discuss say Kendall ear “cut into him.” He does not ap- in her raised Mrs. Lorance issue wrong Kendall side writ, plication are with the cases suddenly road, but he cut his cаr reasons we shall defendants for just meeting, to the left as the two were presently state. had if Kendall not cut car would gave not have collided. Walter Smith sub- up We first take testimony. stantially Young same Mor- Kendall, Was the driver of the Chevrolet gan says also at one time that he not does any way responsible collision. The for the know him how far Kendall was from merits, it is not is before us on the it, again saw when he first that it province, our it is within our away. probably more than feet as the the facts involved well to consider quote always here found applicable, while this court is law page jury 98: aside the verdict of reluctant set “Q. you cases on you a trial court civil far off How first *4 fact, impelled yet questions we feel I saw the Chevrolet or Kendall A. car? appreciation case, just say. tes in this as our so can’t timony that us to the conclusion leads “Q. happened how A. About far? It so manifestly Kendall is er quick I remember far fion’t how it was. roneous. “Q. perfectly there, straight The road was Right alleged proved hap- A. be it? was where the These accident pened it was. driver of yond thаt got “Q. you you testimony him There Did see before is some that there were road, skid him? marks A. Just a distance. little “scars” in the which place witnesses assumed at “Q. twenty feet, far? how How far — say the collision occurred. Some these fifty About, A. feet. right-hand these marks were on the side “Q. you he until You think didn’t him going Mandeville, the road which was fifty of us. was A. it feet? I saw ahead side, Ford’s Chev- indicated any got pay close. I attention it until "didn’t many place. rolet was out of its About as I road.” see he was middle say, contrary, others on the “scars” says He much he then slowed down аs right going center to Cov- possible, collision. could not ington, but avoid the would indicate testimony The uneontradicted is that testimony wrong on the as to side. straight mile for more than half position road is marks or scars is so foggy night, there, and, though conflicting even it was can form we no conclusion headlights approaching car could of an to where were. Young Mor- been seen that distance. A man named Dunn testified he was gan say be- he the car not could not see does eyewitness collision, to the oc- pay did, at- fore he but that hе not did night, standing curred at while he was some says got close,” he tention it “until it edge fifteen feet from the He road. got paid within he until the ear no attention says he first saw the Chevrolet as it was com- fifty he him. It be said that feet of going around curve toward paying meant no attention that he it wrong and that was then on its side of the oncoming got until it within Dunn, road. Whether Mr. being out him; we from all the feet of but side of the road while Chevrolet was conclude, judge, that not as did the district slight around a curve with its head- ap- paying no attention he lights burning, which no doubt blinded him proaching car, paying at- extent, definitely to some it could tell tention on the road. wrong side, was on its seems doubtful. How- says he saw the it was Kendall Ford when ever, conceding could, it he does not nec- away. leq.st Mr. Berk- at a half mile He and essarily wrong follow still that it was on its enstock, seat with side at’the moment the collision. He does' him, say both -slowed down to 8 say says not that was. He it was on hour, pulled right miles an over to their wrong side when he first it. saw Kendall road, remained, side where their ear companion say they were never on further, zigzag- and, that the Ford сar was wrong side. The says ging road. Kendall that mo- noticing. don’t know— ment the collision Berkenstock before ex- weight going us, they “They attach Ken- (cid:127)We are to hit claimed are companion. They says us.” dall headed toward Berkenstock up grade at a moderate rate some such exclamation. saw made Ford, say considerable dis- wheels of the Chevrolet approaching grade away, down tance well over to of the center of “jazzing” terrific rate of the road. *5 894 They alarmed, feet, natural the road turned hundrеd road. get completely thirty-nine around, thing out was to ran back feet the to do way could, way he and the turned over the ditch the into and came up-side-down path- keep get rest out of its its in the with front end out and way by edge getting the direction from it Mr. had come. as close Dunn, safety permit. away, That what was a few feet imme- road would is ran diately say car, running, did. found it still Kendall his witness pipe exhaust the cas- red hot. The left front boys say that the in the Ford The two ing of the Chevrolet was torn from the into to the left cut Chevrolet woods, wheel and rolled into the car just meeting. We car their a!s the two left, swerved to the ran across the road and First, it would that for two reasons: doubt landed in the ditch. thing unnatural, been the unreasonable have second, do; and, occupants of Appeal that, him to Court of The reasoned if the happened. don’t Ford know what Chevrolet had been on its side of the road where Kendall witness said it was carefully have read reasons Ford, when it came in contact with the assigned judge. He the district overturned, probabilities would “if not in all wrong say not that was on thе Kendall does way ditch, would found in the road, says fur- “the Court is side would not have darted across the road conflicting state- satisfied ther that opposite direction.” occupants the Kendall ear ments greater quite that a much reasoning. We cannot follow the testi- together than indicated their “head-on”; would be The cars did not come mony.” conflicting against The statements “of Chevrolet; did not run the Kendall car” referred neither car other, was knocked him not their expect seem to refer reference therefore there was reason no road, but their their the Chevrolet would off the road on its they did to their statements to the effect meeting side. The two cars were and ran so together man at his office named Foster close left front wheel of o’clock, than about seven Mandeville more the Chevrolet struck left side the Ford glance. jerked two hours before the Foster accident. awith threw or This the left them, judge back, him. he did see believed end the front axle which would bears angle did did Foster Whether not see cause the car to run at аn to the left relevancy road, involved. here issue across the what did. Appeal The in 132 So. found Court reading A careful all the mid- in or near the cars “met brought to the conclusion us that Kendall road dle and ran into each other.” negligence. of no say organ did not mean The of the court pass nowWe to a consideration mid- met in the two cars “head-on” plaintiff may, under road, shows dle for all applicable, case and facts the law re- the left side of the hit against parents cover men. lan- front wheel the Chevrolet —in thе theory street, “side-swiped” guage cars other, seek to recover ran down defendants each after which the Ford Wagner Kloster, Iowa, Lorance Mrs. Adelia Menant 175 N. W. the invited said: Morgan, and of Walter Smith and Clark engaged “Parties said to be ain injured through negligence. their joint enterprise venture common within beyond allege prove question that meaning of the law unless there be com- Smith, belonged but which munity objects pur- interest being driven accident at the time of the poses undertaking, equal right *6 and an operated negligent Morgan, Clаrk in a govern in each to direct and the movements manner, and this of that reason respect and conduct each other mth there- of injured. specifi- gence plaintiffs They right to. Each must some voice and to cally allege Alphonsine Lorance that management.” in be heard its control or contributing guilty Mrs. Menant “not of pertinent point involved, As allega- to here any accident,” which wise said to Oregon-Washington court said in Robison v. tion defendants. was denied 490, Co., 594, Railroad 90 Or. 176 P. 600: that denied their answer Defendants invited car were distinguishing two women “The ultimate characteristic * * * guests, alleged joint that and now contend of venture is none than other joint right, two express implied, adventurers with the or either to direct joy boys; suggestion taking employed of the movement of vehicle came, boys, transportation but from venture,” not from the ride with connected women, planned party, who themselves in—and Director General v. of Railroads “joint engaged Pence, 329, 351, the four were Va. 116 S. E. enterprise,” among the and that there was that the rule is founded the doc agent. principal four what has been referred to law-writ- of § trine 42 C. J. merely partner- informal ers an kind of “as 957. ship,” that, carrying out the so common bar, community In the case at there plan purpose, agent each was of purpose; parties of interest or common others, at- that the one was picture Coving- all set out to ato show at tributable to others. ton, away, several miles the vehicle used carry purpose to out the common joint this do not think enter only automobile, operated by which could be joint prise is or a adventure tеrm as that party. plan member one law, appear used in because it does agreement, however, lacked the essential ele- equal rights to had j¿int joint ment to make it or operation adventure it. control the case enterprise agreed in. That it was Richard, this: 172 La. Lawrason 135 So. party, member held, quote opin this to car, and it is not shown rehearing: should drive the ion on authority, express im- the others had joint adventure “There is no sense operation. plied, to control occupant equally that the automobile is Whilе is some with there there the effect liable unless to suggested equal right operation control the the that Menant first automobile,” party go Covington picture show, citing 1179, 957; to a J. O. Ber- § holding ry (6th Ed.) on Automobiles as a whole warrants the § Alphonsine That to ride Eoranee and. Adelia men invited the women Menant, guests case, guilty in the ear. independent negligence contributed plain- is these The final proximately in- to the accident and their tiffs, in view the conduct of jury manifestly This is is clear. death Menant, cir- Adelia and all the I.orance and testimony. madе clear But aside ease, can re- cumstances connected that, plaintiffs’ allegations show that own defendants. cover contributory negligence. prevails in this state allege The rule “Walter Smith was gross another who invites persons is that one inviting and elsewhere three per guest, or in his as his ride his runabout to ride built pas gratuitous as a another to consenting mits allowing to Clark and in passenger guest senger, or the Morgan’s owes com croioded said car in its stranger, that he same owes dition an excessive unlawful rate injure ordinary care not use per hour, or more miles operation of Such the car. him in the night”; and “that said ear expect passenger sainé per- built the accommodation enjoyed security host himself. sons, persons riding idhereas there were four host, car, fails to use driver of If the thereby mahing impos- runabout, in said operation negligent in and is such care sible, duo to the crowded condition said injured passenger ear, and his operate Ciarle said car with passenger thereof, result as a safety, particularly at an unlawful damages аs are him such recover *7 night.” foggy (Italics ours.) theory upon injury. is This caused heartily plaintiffs’ concur with coun- “Every whatever man causes act sel, petitions, neg- who drew these it that was obliges another, damage him whose fault to ligent permit for Walter Smith and to invite Code, repair happened it.” art. Civ. to persons four to ride a small car built for 2315. only two, especially accommodation on passenger a or action The foggy night, negligent and that it for against another the host the vehicle Morgan attempt Clark to to drive it under injuries damages sustained for recover conditions, to such and also its crowded tort, and, riding is one in as such like while impossible op- made it for him condition to night. safety on it with erate These grounded actions, on tort fault all other proof support allegations need no to them. negligence, of this kind the in actions and and crowding It is self-evident of four plaintiff to establish the burden grown people into the seat a small car upon. negligence relied only deprives to accommodate built is, general rule above stated how arms, use of both hands and free qualifica subject ever, well-established operate without which he efficient- passenger him or tion safety. ly and with independent, contributo such self let us case from recovery. consider the In view defeat Now ry negligence as to guests. They standpoint rule, these had both general exception these to being age discretion, fifteen reached the cannot recover. years portunity old and the other a woman who had to so. Her to do so was failure negligence. She, been of a twice marriеd and was the mother Mrs. Menant was killed. too, years They knew, as well child seven old. was in to see to know what and on, going young men, night as did the continued to ride and desired, toggy, have, runabout built she could had for she two, consenting it. that for This fact her to ride accommodation of and and already people crowded car under conditions four to themselves into seat crowd gross, independent impossible stated make it for constituted' built for two would gence part. safety. operate her car with driver to They they the car to entеred knew this before injury resulting in this The accident and they go before knew it negligent inefficient were due got con- into car to home. Yet driver, operation the car prox- negligence guests under in the car those condi- sented of these contributed imately ; they four who crowded thereto. tions seat; helped to themselves cre- into passenger gratuitous guest, A impossible made it for the condition ate injuries cannot recover motor vehicle safety, operate the car with if he is due to aware host brought helped thе condition which create acquiesces negligence. can in the He Now, injury. if it was about their facul his own exercise of not “abandon the part men invite the safety absolutely ties and intrust conditions, those to ride under women danger, regardless driver, imminence accepting guests negligent in not the also ordinary care or the visible lack of conditions? invitation those under part avoid harm. If he all assuredly they Most were. care, including ordinary exer fails use sight, hearing cise of his own senses Furthermore, protect perception, cir himself under such driver, they on the seat with the neg contributory cumstances, he is posi were both well as he. ligence.” J., § C. that the car and did know tion to know being a reckless driven at passen rides “One who says they girl speed. The Lorance gratuitously ger in of another sixty going miles an hour. When ordinary compensation must exercise speed, said “we were asked about she injury guard himself care to just humming along the road home road; pas whether such hazards hospital,” I knew was next I senger guest has reasonable care exercised humming, again, really because “It safety ordinarily for his humming myself when it’s I a car drive jury.” Cyclopaedia Blashfield’s of Auto that, knew, going fast.” it’s She like Law, 2, page 1036. *8 mobile Vol. know, position the car in a or was work, zigzagging find it stated on the road. She knew the In the same we was guest passenger driving, yet the or of reckless she that the hazard of such danger objection pro which he or to warn the no admits she raised ordinary sees, in of the exercise care of caution to or not a word and uttered test guest gratuitous see, notwithstanding ample op- “a in an driver, he should shе had 901 902- seat, and, the- by, as stated idly clear in a rumble can sit observe automobile organ not, court, if he even operating “could one violations law of tbe would, speed driver.” have communicated with or at an excessive rate [the The further defendant acquiesce it, court stated “that otherwise, hold and then speed damages rate host] re- at an excessive liable driver or owner rainy 2, pages a dark and an road on sulting over unknown from Yol. such violation.” speed night, the reckless continued at 1087-1095. though by other even wаrned Gallman, Pipes v. 173 al. et case car.” Appeal 302, La. So. Court 136 Circuit, justices (the certified the writer So. Two the Second in 135 following them) court: decree ren- facts to this dissented from final case, dered in because (cid:127) defendant, years old, invited four “The 24 opinion facts did not warrant old, high years girls, each school about plaintiff guest holding was an invited that the automobile, sat on his whom car. defendant’s the front seat with the gravel- along a rumble behind. He drove seat theory underlying rule The or hour, gravel per miles hit loose road at 55 ed guest in an an invited automo doctrine that injuring upset, girls.” all four damages arising in bile cannot recover juries host, negligence of due girls further stated that court such,guest danger and is aware of the makes speed made “were excessive aware of acquies protest, no is that of assent to and speed prox- protest. The no excessive guest negligence. Whether cence in such imate cause of the accident.” acquiesces negligence assents or Appeal propounded the then The Court question, is a of fact which must host be following this court: jury determined court the failure of “Whether surrounding case. Each circumstances protest the excessive according case must be decided facts contributory negligence?” car was found. question in This court answered the proposition, Proceeding which is stating Appeal affirmative, that “the Court of give self-evident, one cannot be said to question, itself answer answered acquiesce in a condition about assent correctly ed it Hutchens v. La. always nothing, which he knows it must App. 545, 125 wherein it hеld So. determined, this, in cases like first guest was aware driver was aware, exercise of proceeding excessive of his natural senses due care and use contributory protest made aware, been should have negligence. And this therein denied a given case that If be found his host. 10th, 1931.” March writ error aware might reasonably apprehend Richard, result he should In the of Lawrason ease La. injury, 29, 31, court,- rehearing, if -theexercise care of due negligence, Appeal been of such should have aware he of the Court of affirmed the occupied guest against such his host. The favor him communicate with the enable were that was rid- as would facts *9 904 903 Co., elapsed Ry. v. driver, after In Daull O. & Lt. and if time sufficient N. negligence 1012, discovering 477, him to enable La. So. court held 147 86 so, negligence contributory complaint failed to do the driver make and he imputed guest steps whatever, after be- an cannot be failed take protect management, having part negligence, in its so as of the aware recovery by himself, ac- for a street be defeat then it railway’s negligence. quiesced negligence his host in the oppor- rule, the recover. Under cannot cases our all the court has said discovering tunity of the negligence of the driver be cannot age, ear, gence, in the imputed guest, negligence of some condition,, physical development and mental Jacobs, party was third Jacobs v. involved. might knowledge constitute and his what 253; 272, 992, 1917F, 74 L. La. So. R. A. 141 condi- situation or or a Ry. Co., Pac. La. Churchill v. & 151 Texas taken into consideration all be tion must 314; Maritzky Shreveport Rys. 726, 92 So. v. ac- determining assent Luria, Co., 253; Young 81 144 La. So. v. quiescence. 419; La. 98 So. Vitale v. Checker Cab this, Co., L. La. 59 A. R. 148. rule, plaintiffs invoke the These announced, repeatedly assigned, reasons is ordered that Eor the jurisdictions, prevail in all Appeal seems to set be Court be of vehicle aside, and further ordered and decreed that rule, passenger. That imputed rejected, the demands of application case like however, finds no their suits dismissed at their costs. only negligence involved Here the this. ,host, O’NIELL, J., decree, car or the O. concurs in the gov- ruling Pipes approval Code of the Civil not in article therefore Gallman. erns.