Patorno v. Bessarat

6 Pelt. 479, 1923 La. App. LEXIS 61

• Court: Louisiana Court of Appeal
• Decided: April 16, 1923
• Docket: No.8714
• Status: Published

Opinion

Charles F-. Claiborne, Judge.

ThlB is a suit for $5,818,50. for physloal injuries.

The plaintiff allegesHthat on the afternoon of December 5th 1981,at about 8.30 o'olook,while on field-duty,that is distriot nursing,she was standing on the Lake-side banquet of Bourbon Street,a few feet below the intersection of Governor Hioholls Street,talking to Mrs Drews,a friend-of hersjthat petitioner was standing with her back towards Governor Hioholls Street,facing towards downtown,when,without any previous warning she heard excited exolamations from some bystanders and then received a terrific blow whioh rendered her unconscious)that petitioner has since learned that she was stsnek by an automobile belonging to and driven by Leon Bessarat of this City, which was going down Bourbon Street at a high rate of speed and which, in swerving to avoid a collision with a truck belonging to one A.Riooobono,ran up onto the sidewalk and knocked petitioner down causing her the injuries hereinafter enumerated. Petitioner shows that she was entirely without fault and that her injuries are due solely to the gross negligonoe,oarelessness, and recklessness of the driver of Mr Leon Bessarat's automobile and to the negligence,oarelessness,and recklessness of the driver of the truok belonging to A.Riooobono}that the automobile was going down Bourbon Street and approaohing the intersection of Governor Hioholls Street at an unlawful rate of speed and that the truck of A.Riooobono was likewise being driven at an unlawful rate of speed out Governor Hioholls Street}that as the two vehioles approached in the manner above described it became apparent to the driver of eaoh that he oould not Btop in time to avoid a collision,and both the driver of - the automobile - changefli'the course of their vehicles .without warning^and in . ; • utter disregard of the safety of your petitioner and others, and the automobile,as hereinabove stated,ran onto the Bourbon ; Street side-walk just below the intersection of Governor Nioholls Street and inflioted the injuries on your petitioner hereinafter 'described.That the truck belonging to A.Ricoobono swerved around the oomer of Bourbon Street and ran up onto the River side banquette of Bourbon Street at a point between 75 and. 100 feet below the intersection .Your petitioner oharges specifically that the truok belonging to A.Riooobono,whlle in his servios and driven by his employee,approached Bourbon Street at a recklessly fast rate of speed, in violation of the Oity'Ordinances, and failed to observe the Oity ordinances with reference to stopping at such intersection 'and that the recklessness and want of skill on the part of the driver of the truok was a proximate contributing cause to the injury of your petitioner,arid your - ■ petitioner further avers that the careless unskillful,and unlawful aot of the aforementioned Leon Bessarat,owner of. the. ', automobile in running his oar at a high rate of speed, onto. the. banquette as hereinabove set forth was the proximate oause of plaintiff's Injury.Your petitioner shows that the automobile of Mr Leon Bessarat struok her in the manner above described with suoh force that it threw her violently to, the ground, and ,. rendered her unconscious ¡that she suffered severe bruises, of ..the body and the bon'os of her left foot wore broken.■.

■That 'she ¡fes- been under the doctor's care over ..since and •suffered., great painjthat th<inju^:tc,ier.le^;||||. •consisted of a frapture. of the head, of the • third'- Meta^r£»^»:il,gij!|,. bone and the external cuneiform" — --- ■* - by her physicians -.that she time to wear.á specially designed'arch ■ support and etc.*.' ’ .

. ^Plaintiff-oiaims as ,ifemHg«S''á^inst;’th.e tofo .-dsnts

1st Loss of two and one half' months'a salary $312.50

2nd Doctor's bill 500.00

3rd Injury and pain 5000.00 ■

$5312.50

The defendant Bessarat filed an answer.The oase. as to him has not .yet been tried.

The other defendant A.Ricoobono,flled the following exceptionsj

1st Misjoinder of parties defendants,

2nd No oause of action as to himj

3rd Petition is vague^ general, and indefinite. ■

These exceptions were maintained by the trial Court,and the plaintiffs' suit,against Riooobomywaa dismissed Prom that judgment the plaintiff has appealed.

I If it is true,as alleged by the plaintiff,that her,, injuries were caused by the fault of both'defendants,then they •ff-f T.I - J. * V» It*-* ' T ' are liable to her^j edged -a a- despéndante j¡jfsolldo,and they may be joined as defendants in the same suit. 52 A 124 (1247)

In Cline vs RRD. 41 A 1031-the Court, on page 1040 said:" In all suoh oases, (offenses or quaso offenses),the rigHfc'ViT of the plaintiff to' Join in one suit,all parties to the■ regrob^fi.* ted act,may be regarded as elementary.."

112 La 412-114 La. 266 .

But the illegal Joinder of a party defendant''will"?•'' not be ground for dismissal of the-notion as to the others 32 A 216.

II The theory upon which plaintiff JkíjS on the part of Rlooobono ‘"lb baso^ ^|i«fit.'the ajáoiént ‘ ¿ Squib oase,where the original caüé'e.^ofthe ■*-----J liable.

But the defendant argues that the doctrine, ■ •; . - - - •'■fiararass case was never adopted in this State.

In the case'of Latta vs N.O.Ry.Qo. 131 La 'g&gftS Court said!

"Further along in the opinion the Court gives the following excerpt from Bishop,Non-Cont.Law S 45,referring to the leading and approved case of Scott vs Sheppard 2 W.B1 892, 3 Wills 403; " The defendants threw a squib into an open market house where there wore many people.lt fell upon the standing of Yates,and another there instantly^to prevent injury to himself and Yates,threw it across the market house,and it fell upon the standing of Ryan,who instantly,for the same reason as before^sent it to another part of the mark'e^hóüso,and it there took effect upon the plaintiff(and put his eye out). The intermediate throwings,it is perceived,were from an impulse, fit natural and to be expeoted,so that the Hisastrous result, through remote,was deemed a product of the original cause."

In Walker vs Rodriguez 139 La 251<254) the Court said: "'Defendants deny that the automobile struok the plaintiff, and they argue that it may have struok her companion,who was thrown to' one side,and in galling,he struck the plaintiff,and that she received her injuries in that way.But the preponderance of evidence shows that- the automobil® struok the plaintiff and knoBked her down;and even if this were not so,and she was struck by her companion,who in turn,had been thrown to the ground by the machine of defendants,they the defendants,would still be liable." See also 13 Cyc. P.25 note 54 -29 Cyc.p 491 499-500-601- .

The plaintiff oharges that the defendant Riooobono^ in violation of City ordinances^rushed at full speed into Bourbon Street from a oross street and that in an effort to avoid him,Bessarat suddenly and impulsively swerved to the left, and in so doing without intention or fault,ran into the plaintiff and injured her.For the purposes of the exception we must admit that those allegations are true.If they are true,they establish a cause of action in the plaintiff against Rlccobono.

HI The petition sufficiently informs the defendant of the nature and amount of grievances complained of,and divides' Ms damagee^and claims specific amounts for each item.This is more than was necessary. 36 A 551-50 A 767-52 A 1442 .

It is therefore ordered that the Judgment herein he reversed and set asidejthat the exceptions herein filed he overruled,and that this cause he remandod to the District Court for trial upon the merits in accordance with law and the views herein expressed;the costs of Appeal to he paid hy defendant A.Riocohono^and the -oosts of the lower Court to await the final decision in this case.

Judgment reversed and case remandod.

April 16th 1923 .