Mansur v. Abraham

159 So. 146

• Court: Louisiana Court of Appeal
• Decided: January 21, 1935
• Docket: No. 1397.
• Status: Published

Opinions

MOUTON, Judge.

While driving an auto westward on the Baton Rouge Hammond highway, Joseph Abraham, the .driver, collided with a truck parked on the side of the roadway.

The other occupants of the car, besides Mr. Abraham, were Mr. Peter Mansur, Mrs. Thomas E. Merey, Mrs. Joseph Nolan, and Mrs. Essie Hannie.

Suit is brought by Mr. Peter Mansur and Mrs. Thomas E. Merey, in solido, against Joseph Abraham and the New Amsterdam Casualty Company, his insurer, for damages alleged to have resulted from the collision.^

Mr. Mansur is asking damages for personal injuries in the sum of $5,100. The sum of $670 is demanded by Mrs. Merey for shock, loss of diamond ring, diamond bar pin, purse, dress, a.nd hat, as damages caused by the accident.

Mr. Mansur obtained judgment for $2,000, and Mrs. Merey for $250, from which the defendants have appealed.

The defendants filed the plea of one year’s prescription before answering which was overruled below. • ■

We must dispose of this plea before passing on the merits.

As alleged in the two suits, the collision occurred on the 17th day of December, 1932, and from that date the year expired on December 17, 1933, which happened to be a Sunday.

The suits were filed on Monday, December 18, 1933, the day following. •

The contention. of the defendants is that, as the last day of the year from the date of the collision fell on Sunday, a dies non, plaintiffs’ suits should have been filed on Saturday, the 16th of December, 1933, on the day next preceding the Sunday on which the year expired, as hereinabove stated. "

In the case of Allen & Deblois. v. Their Creditors, S La. 221, it was contended that an' opposition had not been filed within ten days, the time required by law.

In that case, the 10th day was Sunday, and the opposition was filed on Monday following, as were the suits in this case. -The court stated in that case that as the 10th day, Sunday, happened not to be a judicial day, it was impossible to file the opposition on that day. “all judicial proceedings being forbidden.’’ The court then concludes by saying: “If we should say that the opposition comes too late, we should deprive the opposing creditor of one day allowed by law, or compel him to do what is legally impossible.”

The same rule was applied in Garland v. Holmes, 12 Rob. 421; In Succession of Tay lor, 172 La. 1099, 136 So. 66; and in other decisions of the Supreme Court of this state; also in 62 Corpus Juris, p. 1000, § 49.

In this case, as the last day of the year fell on a Sunday, if that day were to be taken into account in the computation of time within which defendants claim these suits should have been filed, plaintiffs would be deprived of one day in the time allowed to file their complaint, unless, as was said, in Allen v. Their Creditors, 8 La. 223, we compelled them “to do what is legally impossible.”

We think the reasoning of the court is sound as expressed in Allen v. Their Creditors, 8 La. 221, hereinabove cited, and in which the same doctrine was applied in the decisions above referred to, and in several other adjudications on this subject.

In Corpus Juris, 62, p. 1000, § 49, above cited, it is said: “When the last day of a period of time within which an act is to be done falls on Sunday, that day is excluded from the computation and the act may be rightfully done on the following secular or business day.”

In connection with the principle thus- stated in Corpus Juris, we find the following, quoting: “Another conservative principle which should affect the determination of the question is that the computation of time should be so made as to .protect a right and prevent a forfeiture, if this can be done without violating a clear intention or a positive provision.” 17 R. C. L. 754.

There could be no such violation in applying this doctrine under the laws of this state.

In article 1757, Civil Code, where reference is made to a civil obligation as being a legal tie giving to the party entitled thereto, the right of enforcing its performance, it is therein further said as follows: “When the action is barred by prescription, a' natural obligation still subsists, although the civil obligation is extinguished.” Article 1758.

It occurs to us that under this provision of our Code which says that a natural obligation still subsists after the prescriptible period has accrued that the rule in question herein should not .be rigidly construed, but should rather receive a liberal interpretation so as to protect the rights of these claimants to have their demand passed upon by excluding from the computation of time Sunday, December 17, 1933, thus defeating the defense presented under the exception of prescription which, we find, was correctly overruled by the district judge.

Counsel for defendants frankly concede that the authorities are in conflict on this issue/ and so do we find, but we think that we have reached a conclusion in consonance with the principle recognized in the jurisprudence of this state on this subject, and that therefore the plea of prescription was correctly overruled.

Merits.

The collision with the truck occurred at about 7:30 p. m., December 17, 1932. The truck was parked on the side of the highway, and had no lights. It was then dark, as was testified .to by the witnesses in the case. Joseph Abraham, driver of the auto in which plaintiffs were riding as guests, was going at about 25 to 30 miles an hour.

Mr. Mansur, plaintiff, was sitting on the front seat with Mr. Abraham, Mrs. Merey, the other plaintiff, was sitting in the rear of the auto with Mrs. Nolan and Mrs. Hannie. They all say the on-coming car had bright lights and that they were blind'ed by these lights.

Mr. Abraham did not testify, although he was present in court, as appears from the record.

The testimony of Mr. Mansur and Mrs. Merey is that upon meeting the other car Mr. Abraham suddenly turned to his right, and without reducing his speed ran his auto into the truck.

Counsel for plaintiffs rely largely on the cases of Sexton v. Stiles, 15 La. App. 148, 130 So. 821, and Safety Tire Service v. Murov, 19 La. App. 663, 140 So. 879, where the court said that automobile drivers must keep proper lookout ahead for obstructions in highway, such as unlighted cars parked on the highway ; and, on being blinded by lights of approaching car, must reduce speed s,o that they may be able to stop immediately if faced with emergency. Also in the case of F. Strauss & Son v. Childers (La. App.) 147 So. 536, 538, where the court said: “A motorist has not the right to assume that his course of travel is free of danger or obstruction, in the absence of his ability to see clearly ahead.”

, In the case of Hanno v. Motor Freight Lines, Inc., 17 La. App. page 63, 134 So. 317, 319, plaintiff, while traveling on the Baton Rouge-Hammond road in order to avoid an on-coming car, pulled to his right, and in doing so ran into a parked truck on the side of the highway which had no lights or signals.

In that case this court said: “Looking,for what was the proximate cause of the accident, as w'e must in order to fix liability, we certainly believe that it was the absence of lights or of any warning whatever of the presence of this large truck at night on the public highway. The state statute, No. 296 of 1928, § 57, required that the one in charge of that truck display on it ‘one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front,’ and also a red light ‘visible under like conditions from a distance of five hundred feet to the rear.’ This is not a rigid regulation, and it is a very precautionary one. Had it been complied with in this case, there is little reason to believe that this accident would have occurred.”

We concluded in that case that the negligence of the driver of defendant’s truck was the real and proximate cause of the accident and therefore held his employer liable in damages.

In the case of Holcomb v. Perry (Second Circuit) 19 La. App. page 11, 138 So. 692, 696, the court quoted approvingly from the opinion of this court in the case of Hanno, above referred to, in which were involved practically identical issues; and said: “So in the present case we hold that the proximate cause of the accident was the parking of the truck of the defendant in the nighttime in such a manner as to practically block the entire highway, and the absence of lights or any warning whatever on the truck.”

In the Hanno Case we held that, when a person is blinded by the lights of a car coming from an opposite direction, he should exercise great caution, have his car under such control as to safely meet any ordinary emergency. The emergency in that case, we found, however, was not an ordinary one a driver might expect to meet on the highway, as the law prohibits the leaving unguarded, and without lights, trucks parked on highways after dark.

After rendering the decision in Holcomb v. Perry, the Court of Appeal, Second Circuit, in Safety Tire Service, Inc., v. Murov, 19 La. App. 665, 140 So. 879, 881, held that motorist must keep proper lookout ahead for obstructions in highway, such as unlighted parked trucks, and, when blinded by lights of approaching car, must reduce speed so that he is able to stop immediately if faced with emergency, and nothing is said in that opinion about the decision rendered in the case of Holcomb v. Perry, wherein it appears to us the court had taken a different position in approving the decision of this court in Hanno v. Motor Freight Lines, Inc., 17 La. App. 63, 134 So. 317.

In the course of its opinion in the later case of Safety Tire Service v. Murov, the court said in a prior opinion, Sexton v. Stiles, 15 La. App. 148, 130 So. 821, it had held that a motorist must keep a proper lookout ahead for obstructions in the highway, such as unlighted cars on the roadside, and cannot blindly drive along relying on the presumption that it is a violation of the law to leave an unlighted car parked on the roadside and that no one will violate the law; and, in reference to the quotation from the 15 La. App., says: “Writ refused by the Supreme Court.”

In the Hanno Case decided by this court, we did not say that the driver of an auto could blindly drive along relying on the assumption that the road was clear of all obstructions. We held that the motorist, under such circumstances, should drive with caution, but could not be held to expect that the highway was obstructed by an unguarded truck, without lights, or any other signal of danger. In the Hanno Case decided by this court writ of review was also refused by the Supreme Court. See 17 La. App. p. 62, 134 So. 317.

In the ease of Woodley & Collins v. Schusters’ Wholesale Produce Co., Inc., 170 La. 527, 128 So. 469, the Supreme Court held that, as a general fule, a motorist traveling at 30 miles an hour, when blinded by the headlights of an approaching car, is guilty of negligence if he fails to slow down to a speed at which he can stop instantly. In that case, the charge of negligence, as stated in the syllabus, was that the truck had no tail-light contrary to Act No. 232 of 1926, § 5; that section of Act No. 232 of 1926 required a taillight or a parking light mounted on the left rear fender of a truck or bus, but there was no provision in reference to the projecting power of such light.

Later, in section 57, Act No. 296 of 1928, in providing for such a light on vehicles or trucks parked or stopped upon a highway, it is required that there must b.e “one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hunded feet to the front of such vehicle and projecting a red light visible under like conditions from a distance of five hundred feet to the rear.”

In this case the proof is that the Abraham car ran into the rear end of the truck which had no light. There is nothing in the evidence to show that the atmospheric conditions were not normal at the time of this col lision. As such was the situation, if a red light, of the character required by Act No. 296 of 1928, had been placed in the rear of that truck, it would haye been visible at a distance of 500 feet. It is not to be believed that the headlights from the on-coming automobile could have blinded Mr. Abraham at a distance further than 500 feet, so that his vision would have been so disturbed or blurred that he could not have seen the red light in the rear of that truck before the approaching car had passed beyond the point where the truck was standing.

We must therefore conclude that he could not have failed to see this red light had the owner or driver of the truck complied with the law. We say so, particularly as he was going at the time at a speed of 25 or 30 miles an hour, and which he kept up on swerving to his right to let the other car pass to his left.

If lights white .and red were placed in the front and rear of trucks or other vehicles, as required by Act No. 296 of 1928, it seems to us that collisions on the highways of the character under discussion would never occur. These accidents, if such lights were displayed, might happen only in cases where they would be the result of reckless driving.

There was no fast or reckless driving in this case, as it is shown that Mr. Abraham was going at 25 or 30 miles an hour when he ran into the truck. Mr. Abraham was not guilty of negligence, as held below, and the judgments rendered against him and the New Amsterdam Casualty Company, his insurer, in favor of Mrs. Thomas E. Merey and in favor of Mr. Peter Mansur, as his guests, must be reversed.

In this case a reversal will be entered against Mrs. Thomas E. Merey; and, in a separate decree, judgment of reversal will be entered against Mr. Peter Mansur.

It is therefore ordered, adjudged and decreed that the judgment below rendered in favor of Mrs. Thomas E. Merey against Joseph Abraham and the Amsterdam Casualty Company be annulled, avoided, and reversed; that her demand be rejected at her cost in both courts.