Goynes v. St. Charles Dairy, Inc. , 197 So. 819 ( 1940 )

COLUMBUS REID, Judge ad hoc.

This is a suit brought by the plaintiff to recover from the defendant damages in the sum of $1,472.59, arising out of an automobile accident which occurred on Highway 51 in the Town of Roseland on the afternoon of August 13, 1939. The items of damages claimed in the petition are: Actual damage to his car, $282.59; general damage to his car, $150; loss of the use of car, $540; and personal injuries to himself, $500. The latter item of damage was waived at the beginning of the trial and therefore does not enter into the case.

The plaintiff alleges in his petition that on the afternoon mentioned, while his car was driven in the Town of Roseland at a speed of approximately twelve miles per hour, a truck belonging to the defendant and being operated by Alton McNab, an employee of defendant, proceeding in the same direction at a fast rate of speed, without warning suddenly crashed into petitioner’s automobile from the rear. The defendant alleges in its answer that the driver of its truck was driving at a moderate rate of speed and when some 150 feet from plaintiff’s car sounded his horn and pulled to the left in order to pass the car; that when he was within fifteen or twenty feet of the plaintiff’s car, the driver thereof, suddenly and without warning, pulled to his left in an attempt to make a short left turn into a driveway; that the driver of the plaintiff’s car then tried to pull back to the right and the driver of defendant’s truck pulled further to the left to avoid the collision but, nevertheless, the front of the truck struck the left rear end of plaintiff’s car. The defendant claimed that the accident was caused by the negligence of the driver of plaintiff’s car in failing to give a signal of his intention to make a sudden left turn and in his failure to assure himself that there was no approaching, traffic before attempting such turn. While defendant denies any negligence on its part, it pleads in the alternative the contributory negligence of the driver of the plaintiff’s car as the approximate cause of the accident.

Judgment was rendered for plaintiff for the sum of $432, consisting of $282 actual damage to plaintiff’s car, and $150 for the rental of another car while the damaged car was being repaired. The trial court refused to allow.the item of $150 to be claimed as general damage and depreciation to the car. The defendant has appealed, and in this Court the plaintiff has filed an answer to the appeal on the day the case came on for argument, over objection of the defendant, praying that the judgment be amended by allowing the rejected item of $150 for general damage to the car.

Counsel for defendant urges his objection to the filing of the answer to the appeal on the ground that it comes too late. Article 890 of the Code of Practice, as amended by Act 103 of 1908, requires that all answers to appeals demanding the reversal of any part of the judgment or damages against the appellant shall be filed at least three days before the day fixed for argument, provided, that in the Courts of Appeal several circuits of the state such answers to appeals shall be allowed filed before argument within the first three days of the actual sittings of any regular session of said courts of appeal. Rule 11 of this Court printed at page 768 of Volume 11, Louisiana ■ Courts of Appeal Report requires all answers to appeals to be filed within the time required by law, Act 103 of 1908.

The regular session of this court for the hearing and submission of cases at Amite is fixed by rule for the second weeks of June and January of each year, but this case, with others, was set for a hearing by order of court on June 6, 1940. The case was not heard on that date on account of the illness of one of the members of the court and the cases on assignment were by order of Court fixed for hearing for June 27, 1940. Therefore, for the purpose of filing answers to appeals this day must be considered as the first day of the session at Amite and the answer to the appeal being filed on this date and before the case was argued was filed within the first three days of the session in accordance with the provisions of Act 103 of 1908.

The second circuit Court of Appeal has so construed the above act and has held that in answer to the appeal praying for an amendment of the judgment may be filed on the first day of the regular session. Wilkinson v. Dubach Mill Co., Inc., 2 La.App. 249; Roberts v. Phillips, 6 La.App. 394; Dover et al. v. Atlas Assur. Co., 15 La.App. 132, 130 So. 828.

We concur in the construction by our learned brethren of the second circuit of Act 103 of 1908 and will adopt and follow this construction. We, therefore, hold that the motion to amend filed by the appellee is timely and will be considered. We note, however, that the Court of Appeal for the Parish of Orleans has held that Act 103 of 1908 does not apply to that Court or, if it does, the sessions of that Court begin the first Monday in October of each year, requiring all answers to appeals filed three days after the beginning of the term in October to be filed at least three days before the argument. Succession of -Solis, 10 La.App. 109, 119 So. 768.