137 So. 362 | La. Ct. App. | 1931
This suit results from a collision between two automobiles,'a Ford and a Cadillac. The plaintiff, Mrs. Walter Thompson, was a guest in the Ford, which was owned and driven by Miss Ruth Haubtman; the other occupants of the car being Mrs. L. Haubtman, mother of Miss Haubtman, and Mrs. J. L. Thompson, sister of Miss Haubtman and daughter-in-law of the plaintiff. Mrs. Thompson was injured in the accident, and brought this suit for damages against Anthony Mussacchia, the driver of the Cadillac, and Charles Tamborello, the owner, and Miss Ruth Haubtman, the driver and owner of the Ford car, in which she was riding at the time of the collision. There was judgment below against all three defendants, in solido, in the sum of $1,375, as prayed for, and Miss Ruth Haubtman alone has appealed. We are therefore only concerned with the question of Miss Haubtman’s responsibility for the accident.
A consideration of the conflicting testimony in the record raises considerable doubt
In our opinion the plaintiff is bound 'by her testimony exonerating Miss Haubt-man. Civil Code, article 2291, reads as follows:
“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who has made it.
“It can not be divided against him.
“It can not be revoked, unless it be proved to have been made through an error in fact.
“It can not be revoked on a pretence of an error in law.”
In the case of Megason et al. v. Boleyn Lumber Co., 140 Ha. 431, 73 So. 257, it was held that a litigant was bound by the answers to interrogatories propohnded by his adversary and destructive of his case, notwithstanding his testimony to the effect that he was under the impression that the interrogatories had been propounded by his own counsel and that his answers had been made thoughtlessly, and, as a matter of fact, were untrue. See, also, Kohn v. Marsh, 3 Rob. 48; State ex rel. Smith v. Dardenne, 131 La. 59, 58 So. 1032.
Our conclusion is that the judgment aj>-pealed from is erroneous in so far as it condemns Miss Ruth Haubtman, and it is therefore ordered, adjudged, and decreed that the’ judgment appealed from be amended, in so far as it runs in favor of the plaintiff, Mrs. Walter Thompson, and against Miss Ruth Haubt-man, defendant, and it is now ordered that there be judgment in favor of the defendant, Miss Ruth Haubtman, and against the plaintiff, Mrs. Walter Thompson, dismissing plaintiff’s suit at her cost. As thus amended, the judgment is affirmed.
Amended and affirmed.