tion of Beauregard street, on January 24, 1920, in the afternoon,

Sprague street runs east and west, and is intersected at right angles by Beauregard street. Morefield was driving his Cadillac

(Supreme Court of Louisiana. April 30, 1924.) towards the east, and S. C. Henderson,

(Syllabus by Editorial Staff.)

1. Carriers 318 (7)-Finding that taxicab company and owner of colliding automobile were both at fault sustained in passenger's action for injuries.

In action against taxicab company for injuries sustained in a collision between the taxicab, wherein plaintiff was riding, and defendant's automobile, evidence held to sustain finding that taxicab company and driver of automobile were both at fault.

2. Damages 131(3)—$2,025 for broken bone of hand, cuts and bruises, pain, and medical expenses held excessive by $1,000 as to injuries.

$1,500 for personal injuries, $500 for pain and suffering, and $25 for medical expenses, held excessive as to personal injuries by $1,000, where plaintiff sustained shock, was cut about face and neck, and had simple fracture of bone

of hand.

chauffeur for the Interurban Company, was going west. The taxicab was going down a 7 per cent. grade near the right-hand curbing at a speed variously estimated from 12

to 30 miles per hour, Henderson says 12 to 15 miles, and Morefield believes it was 30 miles. The Cadillac according to Morefield was going 10 to 12 miles per hour, and according to Henderson it was running 30 miles.

It is admitted by Morefield that he was traveling near the center of the street, and that on reaching the corner of Beauregard he says that he slowly turned to the left to go north into Beauregard street; Morefield further says that his curtains were up, and that he gave no signal with his arm to indicate his intention to turn; that he saw the taxi coming, but thought he had ample time to enter Beauregard street before the taxi could reach the intersection of that street.

Appeal from First District Court. Parish He further says that the taxi was coming of Caddo; J. R. Land, Judge.

Action by I. J. Brook against the Interurban Motor Transportation Company and another. Judgment for plaintiff, and defendants appeal. Amended and affirmed.

at such a great speed that it collided with him and struck his Cadillac just back of the front right wheel, and thereupon he realized that he had made a mistake of judgment.

Henderson on the other hand says that the Cadillac was approaching on the wrong or

J. S. Atkinson and Alex F. Smith, both of left side of the street, and that it was sudShreveport, for appellant Morefield. denly turned in front of him, too late for him to avoid the collision.

Foster, Looney, Wilkinson & Smith, of Shreveport, for appellant Interuban Motor Transp. Co.

Clem V. Ratcliff, Hall & Bullock, and Pike Hall, Jr., all of Shreveport, for appellee.

By Division B, composed of DAWKINS, LAND, and LECHE, JJ. LAND, J., being recused, ROGERS, J., of Division A, took

part.'

LECHE, J. Plaintiff, who was a passenger in a taxicab belonging to the Interurban Motor Transportation Company, was painfully injured in a collision between the taxicab and a Cadillac automobile belonging to W. H. Morefield, and he sues for damages resulting from his injuries, both the Interurban Motor Transportation Company and Morefield, and prays for judgment against them in solido, in the sum of $3.500.

E. T. Boone, a young man who seems to be totally disinterested in the outcome of this suit, was driving a milk delivery truck. He was going south on Beauregard street, and reached the corner of Sprague just in

time to see the two automobiles approach and collide. He says that the taxi was running on the right side of the street at a speed of about 15 miles, that the Cadillac was in the center of the street and "kinda stopped" when it turned, then darted forward to pass ahead of the taxi, but was caught by the taxi near its front right fender.

Such are the salient facts in regard to the collision, as testified to by the three principal eye witnesses. We have no doubt that they were sincere and candid in presenting these facts to the court, but their testimony aptly illustrates how events that occur rapidly and unexpectedly are differently seen and

The district court awarded him a judg-appreciated by the average person. ment for $2,025 against both defendants. Defendants have appealed, and plaintiff, in an answer to the appeal, asks for an increase of the judgment in conformity with the prayer of his petition.

The collision took place in the city of Shreveport on Sprague street at the intersec

The estimates of these three witnesses as to the speed and movement of the two automobiles is of doubtful value; but from that testimony and the admitted facts, certain conclusions may safely be drawn. The proxmate cause of the collision was the turning of the Cadillac crossways in the path which

(100 So.)

Dr Darrow, an expert in X-ray photography, testified that the photographs he had taken indicated a simple fracture of the third metacarpal bone of the right hand, from which injury recovery can be expected.

the taxicab was entitled to follow along which he said at the time of the trial, in Sprague street. Morefield was undoubtedly October, 1920, had been impaired. at fault in thus blocking the right of way of the taxicab. He gave no signals, and it matters not that the taxicab may have been exceeding the speed limit fixed by the city ordinances. The contributory negligence of the chauffeur of the taxi did not excuse Morefield's negligence. It is not only reasonable, but strongly dictated by ordinary common prudence, that a person driving an automobile along a city street or any other much frequented highway, who wishes to alter his course, should exercise the greatest care and caution in so doing. There may be other automobiles behind and he should especially avoid getting into the path of automobiles coming from the opposite direction, for it is difficult and almost impossible in such a position to accurately determine the speed of the latter.

We cannot from the estimates of the witnesses say that the chauffeur of the taxicab was guilty of overspeeding, but there is evidence of other uncontradicted facts in the record which does convict him of such fault. When the two automobiles came in contact, the clash was so violent that plaintiff, who was sitting on the left rear seat of the taxi, and who had braced himself in anticipation of the shock, was catapulted forward with sufficient force to cause his head to crash through double panes of glass against the shoulder of the chauffeur. The Cadillac automobile, though much heavier than the taxicab, was skidded sideways several feet, and a young lady who was sitting on the right front seat of the Cadillac was dropped through the curtains upon the pavement. The taxi must have been going, according to the language of the young lady, at "90 to 1" to have caused these results.

Dr. B. Johns testified that he had examined plaintiff the day after the accident, and described the scratches he had found on plaintiff's face and neck. He said the cuts were superficial and not deep, and that the only effect of them would be a slight disfigurement. He further stated that there had been a good union of the broken bone in the hand, and that such injury would ordinarily cause no impairment in the use of the hand.

In Baucum v. Pine Woods Lumber Co., 130 La. 40, 57 South. 577, the plaintiff was allowed $2,000 for a fractured ankle, six weeks confinement to bed, necessary use of crutches for four or five months, and permanent impairment estimated at 50 per cent. of the mobility of the ankle joint.

In Cartwright v. Puissigur, 125 La. 700, 51 South. 692, badly mashed toes, bruises about the person, and pecuniary damage, amounting to over $100, were compensated in the sum of $500.

In these two cases the injury was to the foot, a part of the human body equally as necessary, though perhaps not as useful as the hand.

Other precedents cited in brief by one of the defendants, and maybe more appropriate to the present case, are Miller v. Tall Timber Co., 143 La. 269, 78 South. 555; Jones v. Tremont Lumber Co., 139 La. 616, 71 South. 862; Smith v. Minden Lumber Co., 114 La. 1035, 38 South. 821; Loyacano v. Jurgens, 50 La. Ann. 441, 23 South. 717; and Lanier v. Hammond Lumber Co., 141 La. 829, 75 South. 738.

[1] We are of the opinion that both of the defendants were at fault, and that the trial [2] According to these precedents we be judge's findings to that effect are well sus-lieve that the award in the present case by tained by the evidence in the record.

The only other question to be passed upon is the quantum of damages. That question always involves more or less embarrassment, as its solution rests in the sound discretion of judges and juries. The only safe rule is to abide as much as possible by precedents. Plaintiff claims that he suffered much from the shock; that he was cut by broken glass about the face, ear, and neck; and that he lost a considerable amount of blood from these wounds. He further complains of a severe bruise to his right hand, the use of

the district court should be materially reduced. That court allowed plaintiff $500 for pain and suffering, $1,500 for personal injuries, and $25 for medical expenses, a total of $2,025. We believe the item of $1,500 for personal injuries should be reduced to $500, and, as thus reduced, that the judgment should otherwise be affirmed.

For these reasons the judgment of the district court in this case is reduced from $2,025 to $1,025, and, as thus amended, it is ordered that it be affirmed, appellee to pay costs of this court.

3. Libel and slander 74-Defendants cannot damages from another who has retaliated in be jointly sued in slander.

Where life underwriters' association published resolutions condemning the practices of plaintiff, an insurance agent, in persuading persons carrying insurance to cancel it, and take out new policies in plaintiff's companies, such resolutions charging that such practice was not for the benefit of the policy holder, and recommending that insurance companies refuse business so obtained and cancel plaintiff's license, and also published in newspapers a statement that new insurance could not replace old insur- in this state, all in solido, for damages for ance, with benefit to policy holders, held, that plaintiff had no cause of action for libel.

the destruction of plaintiff's business, for loss of profits which he would have made, and for distress of mind, humiliation, and injury to his reputation and standing. He places his damages, all told, at $378,500. The cause which plaintiff alleges brought Where a life underwriters' association passed resolutions condemning the practice of about his injury and undoing was certain plaintiff, an insurance solicitor, in procuring libelous resolutions and publications made persons carrying insurance to cancel it, and by the Life Underwriters' Association of

(100 So.)

Louisiana acting for and on behalf of itself and the insurance companies doing business in this state and named in plaintiff's petition, and certain slanderous and defamatory remarks uttered by three individuals named in the petition-all of which libel and slander, plaintiff claims, was the carrying out and in furtherance of a preconceived plan and conspiracy on the part of the insurance companies and their agents and solicitors to prevent the plaintiff from practicing his profession as life insurance solicitor and advisor.

The defendants all filed exceptions of vagueness, of no cause or right of action, and of misjoinder of parties defendant. The exception of no cause of action was sustained as to all the defendants except three individuals, and as to them the exception of

misjoinder was sustained.

The resolutions which plaintiff complains of and which he charges were sent out to all the life insurance companies doing business in this state, and which it is alleged were published in the American Insurer, a newspaper of general circulation published in the city of New Orleans, are as follows: "Twisting in Louisiana.

in any well-established legal reserve life insurance company, and, if it does, the acceptance of such business be declined.

"Be it further resolved that, if said McGee is found guilty of this practice, the company or companies employing him be requested to cancel his license to do business in Louisiana."

The other article which plaintiff claims was libelous, and which he alleges was published in the Times-Picayune, the Daily States, and the Item, is as follows:

It is alleged that Edward G. Simmons, "Resolution of the Life Underwriters' Asso- manager of the Pan-American Life Insurciation calls attention

"To Practice.

ance Company, acting for himself and for said company, told one George W. Nott, who was dealing with petitioner, that petitioner "Several complaints have been received by the Life Underwriters' Association of Louis- was a faker, and was pulling off a "get rich iana alleging that Ira J. McGee, who recently quick game," and warned Nott to have nothopened headquarters in New Orleans, is engaging to do with him.

That said Simmons

ed in the practice of twisting. The matter was made the same statements to one Robert H. considered at a meeting of the executive com- Downman. mittee of the association this week, and, after That one Robert A. Hopkins, secretary of a thorough discussion of the subject, the follow-the said association, acting for himself and ing resolution calling attention to McGee's operations and condemning the practice of twisting, was passed.'

"It has been brought to the attention of the Life Underwriters' Association of Louisiana that one Ira J. McGee, alleging he is an actuary, is suggesting and urging the holders of policies in companies whose representatives are members of the association, to surrender such policies and rewrite in such companies as McGee may propose, representing such a course can be pursued with profit to the insured.

"As life underwriters, knowing that the promises on which such conclusion is based is unprofitable to the insured, we deem it a duty to our clients to put a stop to this practice. "Therefore, be it resolved that we condemn the practice of canceling old policies in any solvent established life insurance company, to be replaced in the same or any other life insurance company, as we know that it is against the interests of the policy holder.

on behalf of the said Life Underwriters' Association, stated to A. L. La Combe, manager of the Manhattan Life Insurance Company, that petitioner was a crook, and was pulling off a fake proposition.

That one Joseph Collins, president of the Underwriters' Association, and agent of the New York Life Insurance Company, stated to one Pendleton over the telephone that the plan suggested by petitioner for the adjustment of the insurance policies was a fake, and that petitioner's advice was dishonest, and was intended to profit petitioner while injuring said Pendleton; as a result said Pendleton refused to' deal further with petitioner.

It appears further from the allegations of the petition that the plaintiff had for many years devoted himself to the study of life "Be it further resolved that this practice be insurance and of contracts and policies made brought to the attention of the executive offi- and issued by life insurance companies, and cers of all life insurance companies doing busi- had thereby become highly competent to soness in the state of Louisiana, and to the gen-licit life insurance and to advise holders of eral agents or managers of said companies, to the end that all business submitted by the said life insurance policies regarding their rights McGee may be scrutinized to determine wheth- under their policies; that under the policies er it involves the surrender of the old policy issued by the companies doing business in

this state, and named in the petition, the holders are granted various rights to be claimed at their option, and that it frequently happens by exercising such rights that insured persons are enabled to obtain valuable advantages by obtaining an equal amount of insurance at less cost, or increasing the amount of insurance at the same or less cost, or by recovering a part of the premiums previously paid, and at the same time increasing the insurance value of their policies at the same or less cost.

It is alleged that the provisions of the policies in which such options are granted are expressed in technical language, so that the ordinary man without the advice of an expert, such as petitioner is, remains in ignorance of his rights, and because of such ignorance does not avail himself thereof; that it is to the interest of the insurance companies that their policy holders should be prevented from obtaining such advice and should be kept in ignorance of their rights; that it is also to the interest of the solicitors and agents of said insurance companies to keep the policy holders in ignorance of their rights, because such agents lose their commissions on the renewal premiums.

"To hold otherwise would be at variance with the well-settled rules of pleading, and might lead to a multiplicity and confusion of pleas and issues, at present unknown to our system of a general verdict and judgment rendered in of practice, to say nothing of the consequences such a case, consolidating the claims into one, or allowing some and rejecting others."

In the case of Gill v. City of Lake Charles, 119 La. 18, 43 South. 898, it was pointed out that our Code of Practice makes no provision for determining when parties may or may not be joined either as plaintiffs or defendants, but the court, after reviewing many authorities, said:

"The general result of the foregoing may be said to be that the avoidance of a multiplicity of suits is always desirable, but that parties are not allowed to join unless they have a common interest as to the point at issue, and that even then the court may exercise a discretion."

In a still later case, Courtney v. Louisiana Ry. & Nav. Co., 131 La. 575, 59 South. 994, the court reaffirmed the rule that

there is no joint liability for loss, or privity of "There is a misjoinder of defendants where contract, between them or some of them."

It is contended that the allegations of the petition are sufficient to bring the defendants, Simmons, Collins, and Hopkins, who are charged with the slander and defamation of petitioner by words, within the charge of conspiracy made against the insurance companies and their agents, and to make them liable in solido with the said companies, and that the said individuals are therefore properly joined in the suit.

The plaintiff in the early part of 1921 secured the agency to represent the Manhattan Life Insurance Company, the Penn Mutual Life Insurance Company, and the Travelers' Insurance Company in this state, and obtained the proper license from the secretary of state. The contracts of the plaintiff with the said companies were canceled by the said companies within a few months after they were made, and it is charged by the plaintiff that the cancellation was made at It is true that in paragraph 17 of the pethe instance of the defendant companies and tition it is alleged "* that in purtheir agents as a result of the resolutions suance of the said combination and conspiraand publications herein previously copied, cy and for the purposes aforesaid, and with and was for the purpose of preventing peti- the motives and intents aforesaid the said tioner from practicing his profession as life corporations and the said persons in coninsurance solicitor and advisor, to destroy cert did the following acts and things, the business which he had built up, and fur-* *" and it is also true that following ther to keep the policy holders from being advised of their rights under their policies, and from claiming the benefits thereof.

[1] The first question in logical order is whether under the facts alleged in the petition the defendants can all be joined in one suit. In this connection it may be stated as an accepted rule of law and jurisprudence that two or more persons cannot be grouped together and joined in one suit either as plaintiffs or defendants, where there is no privity of contract or mutuality of interest. In Mavor v. Armant, 14 La. Ann. 182, it was said that the law does not permit a creditor to sue all of his debtors in the same action, unless there is a joint liability or privity of contract or interest which authorizes the joinder.

*

said paragraph the three defendants named are alleged to have made the remarks imputed to them, but nowhere in said petition, before or after the allegation of the specific slander by the said three defendants, are their names mentioned as in any manner connected with the alleged conspiracy.

The entire petition, in so far as the conspiracy charge is concerned, is manifestly directed at the insurance companies and the agents named, and does not include specially nor inferentially the three individuals referred to. The obvious basis for the charge of conspiracy is the resolutions and publications, with which the petitioner in no manner connects the three individuals.

It is quite clear, therefore, that the action for personal slander against Simmons, Col

And in Dyas & Co. v. Dinkgrave, 15 La. lins, and Hopkins is wholly distinct from