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(156 La.)

tion of Beauregard street, on January 24, No. 24529.

1920, in the afternoon, BROOK V. INTERURBAN MOTOR TRANSP.

Sprague street runs east and west, and is Co. et al.

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.;

chauffeur for the Interurban Company, was

going west. The taxicab was going down a 1. Carriers 318(7)–Finding that taxicab company and owner of colliding automobile ? per cent. grade near the right-hand curbwere both at fault sustained in passenger's ing at a speed variously estimated from 12 action for injuries.

to 30 miles per hour, Henderson says 12 to In action against taxicab company for in- 15 miles, and Morefield believes it was 30 juries sustained in a collision between the taxi- miles. The Cadillac according to Morefield cab, wherein plaintiff was riding, and defend- was going 10 to 12 miles per hour, and acant's automobile, evidence held to sustain find- cording to Henderson it was running 30 ing that taxicab company and driver of auto- miles. mobile were both at fault.

It is admitted by Morefield that he was 2. Damages Om 131(3)-$2,025 for broken bone traveling near the center of the street, and

of hand, cuts and bruises, pain, and medical that on reaching the corner of Beauregard expenses held excessive by $1,000 as to in- he says that he slowly turned to the left to juries.

go north into Beauregard street; Morefield $1,500 for personal injuries, $500 for pain further says that his curtains were up, and and suffering, and $25 for medical expenses, that he gave no signal with his arm to indiheld excessive as to personal injuries by $1,000, cate his intention to turn; that he saw the where plaintiff sustained shock, was cut about face and neck, and had simple fracture of bone taxi coming, but thought he had ample time of hand.

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.

at such a great speed that it collided with

him and struck his Cadillac just back of the Action by I. J. Brook against the Interur. front right wheel, and thereupon he realized ban Motor Transportation Company and that he had made a mistake of judgment. another. Judgment for plaintiff, and defend

Henderson on the other hand says that the ants appeal. Amended and affirmed.

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 Foster, Looney, Wilkinson & Smith, of him to avoid the collision. Shreveport, for appellant Interuban Motor E. T. Boone, a young man who seems to Transp. Co.

be totally disinterested in the outcome of Clem V. Ratcliff, Hall & Bullock, and Pike this suit, was driving a milk delivery truck. Hall, Jr., all of Shreveport, for appellee. He was going south on Beauregard street, By Division B, composed of DAWKINS, time to see the two automobiles approach

and reached the corner of Sprague just in LAND, and LECHE, JJ. LAND, J., being and collide. He says that the taxi was runrecused, ROGERS, J., of Division A, took ning on the right side of the street at a speed part.'

of about 15 miles, that the Cadillac was in

the center of the street and "kinda stopped" LECHE, J. Plaintiff, who was a passen. when it turned, then darted forward to pass ger in a taxicab belonging to the Interurban ahead of the taxi, but was caught by the Motor Transportation Company, was pain- taxi near its front right fender. fully injured in a collision between the taxi- Such are the salient facts in regard to the cab and a Cadillac automobile belonging to collision, as testified to by the three prinW. H. Morefield, and he sues for damages re- cipal eye witnesses. We have no doubt that sulting from his injuries, both the Interur- they were sincere and candid in presenting ban Motor Transportation Company and these facts to the court, but their testimony Morefield, and prays for judgment against aptly illustrates how events that occur rapidthem in solido, in the sum of $3,500.

ly 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. The estimates of these three witnesses as Defendants have appealed, and plaintiff, in to the speed and movement of the two autoan answer to the appeal, asks for an increase mobiles is of doubtful value; but from that of the judgment in conformity with the testimony and the admitted facts, certain prayer of his petition.

conclusions may safely be drawn. The proxThe collision took place in the city of mate cause of the collision was the turning Shreveport on Sprague street at the intersec- l of the Cadillac crossways in the path which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(100 So.) 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 Dr Darrow, an expert in X-ray photograof the taxicab. He gave no signals, and it phy, testified that the photographs he had matters not that the taxicab may have been taken indicated a simple fracture of the exceeding the speed limit fixed by the city third metacarpal bone of the right hand, ordinances. The contributory pegligence of from which injury recovery can be expected. the chauffeur of the taxi did not excuse Dr. B. Johns testified that he had examined Morefield's negligence. It is not only reason- plaintiff the day after the accident, and deable, but strongly dictated by ordinary com- scribed the scratches he had found on plainmon prudence, that a person driving an auto- tiff's face and neck. He said the cuts were mobile along a city street or any other much superficial and not deep, and that the only frequented highway, who wishes to alter his effect of them would be a slight disfigurecourse, should exercise the greatest care and ment. He further stated that there had been caution in so doing. There may be other a good union of the broken bone in the hand, automobiles behind and he should especially and that such injury would ordinarily cause avoid getting into the path of automobiles no impairment in the use of the hand. coming from the opposite direction, for it is In Baucum v. Pine Woods Lumber Co., 130 difficult and almost impossible in such a po- La. 40, 57 South. 577, the plaintiff was alsition to accurately determine the speed of lowed $2,000 for a fractured ankle, six weeks the latter,

confinement to bed, necessary use of crutches We cannot from the estimates of the wit- for four or five months, and permanent imnesses say that the chauffeur of the taxicab pairment estimated at 50 per cent. of the mowas guilty of overspeeding, but there is evi- bility of the ankle joint. dence of other uncontradicted facts in the In Cartwright v. Puissigur, 125 La. 700, 51 record which does convict him of such fault. South. 692, badly mashed toes, bruises about When the two automobiles came in contact, the person, and pecuniary damage, amountthe clash was so violent that plaintiff, who ing to over $100, were compensated in the was sitting on the left rear seat of the taxi, sum of $500. and who had braced himself in anticipation In these two cases the injury was to the of the shock, was catapulted forward with foot, a part of the human body equally as sufficient force to cause his head to crash necessary, though perhaps not as useful as through double panes of glass against the the hand. shoulder of the chauffeur. The Cadillac Other precedents cited in brief by one of automobile, though much heavier than the the defendants, and maybe more appropriato taxicab, was skidded sideways several feet, to the present case, are Miller v. Tall Tim. and a young lady who was sitting on the ber Co., 143 La. 269, 78 South. 555; Jones y. right front seat of the Cadillac was dropped Tremont Lumber Co., 139 La, 616, 71 South. through the curtains upon the pavement. 862; Smith v. Minden Lumber Co., 114 La. The taxi must have been going, according to 1035, 38 South. 821; Loyacano v. Jurgens, the language of the young lady, at “90 to 1" | 50 La. Ann. 441, 23 South. 717; and Lanier v. to have caused these results.

Hammond Lumber Co., 141 La. 829, 75 South. [1] We are of the opinion that both of the 738. 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 district court should be materially reThe only other question to be passed upon duced. That court allowed plaintiff $500 is the quantum of damages. That question for pain and suffering, $1,500 for personal always involves more or less embarrassment, injuries, and $25 for medical expenses, a as its solution rests in the sound discretion total of $2,025. We believe the item of $1,500 of judges and juries. The only safe rule is for personal injuries should be reduced to to abide as much as possible by precedents. $500, and, as thus reduced, that the judgPlaintiff claims that he suffered much from ment should otherwise be affirmed. the shock; that he was cut by broken glass For these reasons the judgment of the about the face, ear, and neck; and that he district court in this case is reduced from lost a considerable amount of blood from $2,025 to $1,025, and, as thus amended, it these wounds. He further complains of a is ordered that it be affirmed, appellee to pay severe bruise to his right hand, the use of costs of this court.

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(156 La.)

take out new policies through plaintiff, held, No, 26059.

that such resolution was a privileged communi.

cation. McGEE v. COLLINS et al.

7. Conspiracy Om8-Life insurance companies (Supreme Court of Louisiana. April 7, 1924. held not liable for refusing to have business Rehearing Denied hy Division A

dealings with plaintiff insurance solicitor. May 12, 1924.)

Where plaintiff insurance agent attempted

to procure persons already insured to cancel (Syllabus by Editorial Staff.)

their policies and take out new policies through 1. Action 50(9),Joinder of individual de him, insurance companies which were members

fendants and insurance companies in suit for of a life underwriters' association had a right damages for slander and libel held improper. tiff, and were not liable in conspiracy for so

to refuse to have business dealings with plainWhere association of insurance companies doing, when acting in furtherance of a compassed a resolution condemning practices of mon interest for their own protection and in plaintiff, an insurance agent, in obtaining busi- defense of an attack of a common adversary. Dess, and president and secretary of such association and manager of one of the insurance 8. Libel and slander 21-Published article companies had uttered words alleged to be heid not actionable as to one not named. slanderous, plaiotiff could not join such per Article published by a life onderwriters' assons and the insurance companies in one action. sociation, stating that policies rated at the age

of issue could not be replaced to insured's ad. 2. Action Cm 50(9)--Defendants sued for conspiracy held to have sufficient community of ed age, and that any attempt by audit or ad

vantage at the higher rate applicable to attain. interest to be joined in one suit.

justment to change contracts in force was soleWhere association of insurance companies i ly for the profit of the individual attempting the passed resolutions condemning the practices of change, held not to afford cause of action to an plaintiff, an insurance agent, in obtaining busi- insurance agent attempting to procure business ness, held, that sufficient community of interest in that way, when not named in the article. was shown by petition to authorize joinder of all insurance companies and their agents in one 9. Torts Om 16-Party at fault cannot recover suit for conspiracy to injure plaintiff's business

from another retaliating. and reputation.

One who is at fault cannot recover civil 3. Libel and slander Cm74-Defendants cannot damages from another who has retaliated in

kind. be jointly sued in slander.

While a published libel may be the joint act of two or more individuals or corporations, of Orleans; Hugh C. Cage, Judge.

Appeal from Civil District Court, Parish in slander the words of each person uttering it is an entire and distinct offense, and two or Action by Ira J. McGee against Joseph more persons cannot jointly be sued for slan- Collins and others. Judgment for defendo der.

ants, and plaintiff appeals. Affirmed. 4. Dismissal and nonsuit Om56-Dismissal as Boswell & Bryant, of New Orleans, for to all defendants proper, where exception to appellant. misjoinder is sustained.

Monroe & Lemann, Milling, Godchaux, Where an exception or misjoinder of de- Saal & Milling, Spencer Gidiere, Phelps & fendants is sustained, the court may dismiss as

Dunbar, Dufour, Goldberg & Kammer, Richto all.

ard B. Montgomery, Edward Dinkelspiel, 5. Libel and slander 9 (1)-Resolutions and John C. Davey, Edgar M. Cahn, Denegre,

publications of life underwriters' association Leovy & Chaffe, Miller, Miller & Fletchinger, held not libelous.

Eugene J. McGivney, and Edward Rightor, Where life underwriters' association pub- all of New Orleans, for appellees. lished resolutions condemning the practices of plaintiff, an insurance agent, in persuading per

By Division C, composed of OVERTON, sons carrying insurance to cancel it, and take ST. PAUL, and THOMPSON, JJ. out new policies in plaintiff's companies, such resolutions charging that such practice was not THOMPSON, J. This is an action by the for the benefit of the policy holder, and recom- plaintiff, an insurance agent and solicitor, mending that insurance companies refuse busi- against 29 other agents and solicitors and ness so obtained and cancel plaintiff's license, 18 life insurance companies doing business 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 the destruction of plaintiff's business, for plaintiff had no cause of action for libel. loss of profits which he would have made, 6. Libel and slander 45(2)-Resolution of injury to his reputation and standing. He

and for distress of mind, humiliation, and insurance association condemning practices of insurance solicitor held privileged.

places his damages, all told, at $378,500. Where life underwriters' association

The cause which plaintiff alleges brought 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

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For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

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(100 So.) Louisiana acting for and on behalf of itself, in any well-established legal reserve life insurand the insurance companies doing business ance company, and, if it does, the acceptance of in this state and named in plaintiff's peti- such business be declined. tion, and certain slanderous and defamatory found guilty of this practice, the company of

"Be it further resolved that, if said McGee is remarks uttered by three individuals named companies employing him be requested to canin the petition—all of which libel and slan- cel his license to do business in Louisiana.” der, plaintiff claims, was the carrying out

The other article which plaintiff claims and in furtherance of a preconceived plan

was libelous, and which he alleges was pube and conspiracy on the part of the insurance lished in the Times-Picayune, the Daily companies and their agents and solicitors to States, and the Item, is as follows: prevent the plaintiff from practicing his profession as life insurance solicitor and

"Parasites and Pirates. advisor.

“The evidence of prominent bankers, captains The defendants all filed exceptions of of industry and merchants in favor of life invagueness, of no cause or right of action, surance for men of all classes is overwhelm. and of misjoinder of parties defendant. The ing. exception of no cause of action was sustain

"Policies now carried are rated at the age of ed as to all the defendants except three in- issue and could not be replaced to the insured's dividuals, and as to them the exception of advantage at the higher rate applicable to at

tained age. misjoinder was sustained.

"Any man who attempts by so-called audit or The resolutions which plaintiff complains adjustment to change life insurance contracts in of and which he charges were sent out to force is working solely for his own profit. The all the life insurance companies doing busi- agent who placed the policy, or his company's ness in this state, and which it is alleged agency manager, will give you, free of expense, were published in the American Insurer, a

the proper advice with true service. Beware

of others. newspaper of general circulation published

"The Life Underwriters' Association in the city of New Orleans, are as follows:

of Louisiana." "Twisting in Louisiana.

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

ance Company, acting for himself and for "To Practice.

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 engag. ing 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 tborough 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 twist- on behalf of the said Life Underwriters' Asing. was passed.'

sociation, stated to A. L. La Combe, man"It has been brought to the attention of the ager of the Manhattan Life Insurance ComLife Underwriters' Association of Louisiana pany, that petitioner was a crook, and was that one Ira J. McGee, alleging he is an actu- pulling off a fake proposition. ary, is suggesting and urging the holders of That one Joseph Collins, president of the policies in companies whose representatives are Underwriters' Association, and agent of the members of the association, to surrender such New York Life Insurance Company, stated policies and rewrite in such companies as McGee may propose, representing such a course

to one Pendleton over the telephone that the can be pursued with profit to the insured.

plan suggested by petitioner for the adjust“As life underwriters, knowing that the ment of the insurance policies was a fake, promises on which such conclusion is based and that petitioner's advice was dishonest, is unprofitable to the insured, we deem it a du- and was intended to profit petitioner while ty to our clients to put a stop to this practice. injuring said Pendleton; as a result said "Therefore, be it resolved that we condemn Pendleton refused to' deal further with pethe practice of canceling old policies in any solvent established life insurance company, to

titioner. be replaced in the same or any other life in

It appears further from the allegations of surance company, as we know that it is against the petition that the plaintiff had for many the interests of the policy holder.

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 soDess 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 "To hold otherwise would be at variance with holders are granted various rights to be the well-settled rules of pleading, and might claimed at their option, and that it frequent- lead to a multiplicity and confusion of pleas ly happens by exercising such rights that in- and issues, at present unknown to our system sured persons are enabled to obtain valuable of a general verdict and judgment rendered in

of practice, to say nothing of the consequences advantages by obtaining an equal amount such a case, consolidating the claims into one, of insurance at less cost, or increasing the or allowing some and rejecting others.” amount of insurance at the same or less cost, or by recovering a part of the premi- In the case of Gill v. City of Lake Charles, ums previously paid, and at the same time 119 La. 18, 43 South. 898, it was pointed increasing the insurance value of their poli- out that our Code of Practice makes no procies at the same or less cost.

vision for determining when parties may or It is alleged that the provisions of the poli- may not be joined either as plaintiffs or decies in which such options are granted are fendants, but the court, after reviewing many expressed in technical language, so that the authorities, said: ordinary man without the advice of an ex. “The general result of the foregoing may be pert, such as petitioner is, remains in igno. said to be that the avoidance of a multiplicity rance of his rights, and because of such igno- of suits is always desirable, but that parties rance does not avail himself thereof; that are not allowed to join unless they have a comit is to the interest of the insurance com

mon interest as to the point at issue, and that panies that their policy holders should be even then the court may exercise a discretion." prevented from obtaining such advice and

In a still later case, Courtney v. Louisshould be kept in ignorance of their rights; iana Ry. & Nav, Co., 131 La. 575, 59 South. that it is also to the interest of the solicitors 994, the court reaffirmed the rule thatand agents of said insurance companies to keep the policy holders in ignorance of their there is no joint liability for loss, or privity of

“There is a misjoinder of defendants where rights, because such agents lose their com contract, between them or some of them.” missions on the renewal premiums.

The plaintiff in the early part of 1921 se- It is contended that the allegations of the cured the agency to represent the Manhattan petition are sufficient to bring the defend. Life Insurance Company, the Penn Mutual ants, Simmons, Collins, and Hopkins, who Life Insurance Company, and the Travelers are charged with the slander and defamaInsurance Company in this state, and ob- tion of petitioner by words, within the tained the proper Hicense from the secretary charge of conspiracy made against the inof state. The contracts of the plaintiff with surance companies and their agents, and to the said companies were canceled by the make them liable in solido with the said said companies within a few months after companies, and that the said individuals are they were made, and it is charged by the therefore properly joined in the suit. 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 con. insurance 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 said paragraph the three defendants named advised of their rights under their policies, are alleged to have made the remarks imand from claiming the benefits thereof. puted to them, but nowhere in said petition,

[1] The first question in logical order is before or after the allegation of the specific whether under the facts alleged in the peti- slander by the said three defendants, are tion the defendants can all be joined in one their names mentioned as in any manner suit. In this connection it may be stated as connected with the alleged conspiracy. an accepted rule of law and jurisprudence The entire petition, in so far as the conthat two or more persons cannot be grouped spiracy charge is concerned, is manifestly together and joined in one suit either as directed at the insurance companies and the plaintiff's or defendants, where there no agents named, and does not include specially privity of contract or mutuality of interest. nor inferentially the three individuals refer.

In Mavor v. Armant, 14 La. Ann. 182, it red to. The obvious basis for the charge of was said that the law does not permit a conspiracy is the resolutions and publicacreditor to sue all of his debtors in the same tions, with which the petitioner in no manaction, unless there is a joint liability or ner connects the three individuals. privity of contract or interest which author- It is quite clear, therefore, that the action izes the joinder.

for personal slander against Simmons, Col. And in Dyas & Co. v. Dinkgrave, 15 La. lins, and Hopkins is wholly distinct from Ann. 503, 77 Am. Dec, 196, it was said: and independent of and has no connection

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