U. S. Fidelity & Guaranty Co. v. Mauthe

— 471 — ü. S. FIDELITY Sc GUARANTY CO., Appellant. vs CHARLES MAUTHE No. 8249 CHARLES F. CLAMOME, JUDffl. The plaintiff, having issued its policy in favor of Victor E. Hymel, to indemnify him for any damage to his automobile, and having paid $352.59 damages resulting from a collision of Hymel's automobile with that of the defendant, Mauthe, and claiming a subrogation to all the rights of Hymel against Mauthe, sues the latter for $352.59. The plaintiff alleges that on or about April 19th, 1920 Hymel was driving his car down St. Charles Avenue, on the lake side road of the Avenue, owing to the fact that the river side road was undergoing repairs; that near Louisiana Avenue he met with the following accident: that Hymel was proceeding behind a truck at about eight miles an hour, when the truck turned into a side street; that Charles Mauthe, who was driving his car up St. Charles Avenue towards his left instead of his right, negligently ran into Hymel's car and damaged it to the extent of $352.59 which plaintiff paid for him; and that by the teims of the policy the plaintiff is subrogptel to the rights of Hymel against Mauthe. Defendant simply denied each and every allegation in plaintiff's petition contained. There was judgment for defendant and plaintiff has appealed. The evidence is that plaintiff was driving down St. Charles Avenue in his automobile; he was driving on the side of the road towards the Lake because the side t-owafds the River — 472 — was undergoing repairs; he was driving to the right of the road within a foot or two of the neutral ground; in the car with him vfere his wife and child and a friend R. A. Dubroca. Ahead of them was a truck loaded with cotton. \7heh they reached Josephine Street, the truck turned to its left into Josephine Street. Plaintiff's car had not at that moment reached Josephine Street; it was about twenty or thirty feet from it. At that moment plaintiff's car collided with defendant's. Plaintiff was on the right side of the roadway where he should have been, while defendant was on the left side where he had no right to be. This is the testimony of the plaintiff and of his friend Dubroca. They are corroborated by Jesso K. Rea a witness for the defendant who says; Q. How long after the accident did you get there? A. 1 suppose about two or three minutos. Q. Where was Mr. Kauthe's automobile when you first 3a\v it? A. Comer St. Charles and Josephine, facing going uptown. Q. Was it near the neutral ground? A. I Souldn't say. When I saw it, it was in the middle of the street about on the intersection of St.Charles and Josephine. Q. But taking St. Charles Avenue. A. Right about the corner post, at the neutral ground. That was after they hit. 1 don't know whether they v/ere rolled or anything, how far it was dragged after it was hit. Q. Is that the back or front of the automobile that war at the comer? A. The front. The plaintiff was asked: Q. On what side of the automobile did your automobile — 473 — come in contact with Mr. Hauthe's machine? A. On the right side of my machine. Q. The right side of your machine hit the left side of his? A. Ho; he hit right square in the front. Q. Now with regard to the neutral ground and the sidewalk, where did this accident take place? A. Eight close to the neutral ground. Q. Eow far from the neutral ground were you? A. 7/ell, about one and a half or two feet; running very close. In weighing the testimony of this witness we must remember that he had no pecuniary interest in the result as the repairs had been paid by the insurance company; while the defendant was testifying to shield himself from responsibility. Dubrooa did not have the benéfit of Hymel's testimony, because, at the inception of the trial, "at the request of counsel for defendant, the witnesses in this case were ordered to retire from the court-fcoom until called". He says that when the accident happened Hymel's car "was within a foot of the curb, right near the curb, on his right". Bert Hayes, a witness for defendant, who took Hauthe's car to the shop, being asked: Q. Are you the one who repaired it? A. Yes, sir. Q. On what side of the oar was the damage done? A. I think on the right hand side of the car. I am not positive, it is so long ago. The defendant thus testifies: "Both traffic was using the same street; as I got wo the comer, about eight or ten feet, there was a big cotton flop.t with cotton. As he was coming down it aopeared he — 474 — forgot he had to go out Josephine, and made a quick sharp turn, all I could do to stop, I wasn’t going fast, but I just about stooped. Y/hen the big cotton float turned out Josephine Street, ma.de a quick turn, I was afraid he would drag me with him, right behind him was this Paige car. I was just possibly, at a standstill, I can't say, but I was moving very little if at all, and the Paige car, the left hand side of it, struck the left hand side of my car, removed my fender, my left light, and ploughed into my radiator. I was on the lakeside of St. Charles Avenue near the curto, possibly four or five feet from the curb, and in the middle of Josephine Street". If the defendant means to say that he was traveling on the right side of the road, and that, while there, the left hand side of plaintiff's car struck the left hand side of his car, he is contradicted by the plaintiff and his guest, and especially by the witness Hayes who took his car to the shop and repaired it. ’fe rise from a. critical examination of the whole testimony with the conviction that the plaintiff was driving down the street on the right side near the curb, where he should have been. That the defendant occupied one of two positions: either he was drivirg up the street, on the left side of the road near the neutral ground, where he had no right to travel, or, driving on the right hand side, when he reached Josephine Street, and saw the track blocking his advance he swerved to the left to pass the track, and thus threw himself into the way of plaintiff's car. In both positions he violated the traffic ordinances, and, according to several decisions rendered by us, made himself liable for any damage caused thereby. Joseph vs Orleans Ice Man'g. Co. No. 8232. In order to reconcile defendant's testimony with the facts, an attempt was made, in argument, to say that while defendant was running up the street, he was surprised by £he truck suddenly turning into Josephine Street, across his path, and that, in order — 475 — to save himself from imminent danger and harm, he as suddenly, swerved to the left to avoid the truck and thus collided with plaintiff's car, and that the accident was not the fault of either the plaintiff or the defendant, but was the fault of the absent other party, the trupk. No such defense was made in the answer, which certainly would have been made if it had conformed to the facts. No such testimony or explanation was given by defendant. One the contrary, he denied it. He said: Q. "Viere you able to see his car before the accident? A. No, sir, this float turned so quick it scared me, 1 thought he would drag me out Josephine. All I could do vías to stop. Q. Did you afempt to run in towards the neutral gsraund, to pass the float? A. No, sir, I couldn't. There wasn't time enough to do it. All I could say, the vibration of my car was so str.ong as I was trying to stop. Q. And you say you Viere going eight miles an hour. You mean at the time the accident occurred you had. almost come to a stop, hadn't you? A. I did when he bounded off, I couldn't come to a dead stop, but I tried my best to stop. Prior to filing his answer, the defendant had pleaded that plaintiff's petition disclosed no cause and no right of action- The plea was based on'the ground that plaintiff, Hymel, had no right to transfer his claim to the Insurance Company, because "this isra suit for the recovery of damages and is not transferable". No authority is quoted in support of the exception, and we know of none. It is said that the effect of the transfer is to deprive the defendant of his right to reconvene. But if the defendant suffered any damages he may bring a direct suit. 0. C. 2642' (2612) authorizes the transfer of all credits or claims, without — 476 — exception. The validity of transfers of damage claims by the insured to the insurer aften payment of loss by the latter bs,s been recognized in Haviton vs N. O. Light & Power Co. 124 La. 562. See also 26 A. 447; 47 A. 1563 (1569, 1573);50 A. 1147 g (1151); 1 Woods 72; 27 Demolombe 6 ^ In the cese of Gordon vs Hilíaudon 16 A. 347 the syllabus reeds: "Plaintiff being the purchaser of a balance of account due by defendant cannot be held, liable on a reconvention for any .amount due by hi s vendor". In the course of the trial defendant objected to any testimony tending to establish a collision and damage on April 1,7th. at the comer of St. Charles and Josephine Street on the ground of variance between the proof and the petition which alleged that the accident had happened on April 19th at the comer of St. Charles Avenue and Louisiana Avenue. Again the defendant quotes no autnority. The trial Court properly overruled the objection. As to the date, the petition alleged that it vías "on or about April 19th" which sufficiently indicates the accident declared upon, as there was only one accident. The comer of the street was not of the essence of the suit, and the defendant was not taken by aurorise. "Though the allegations be indefinite and informal, yet, if from the pleadings or proceedings before trial the opposite pary has sufficient notice of the nature of the demand or defense to be advanced and could not be surprised evidence thereof will be received!!. 2 H. D. 1155 (1); 15 A/ 501; 31 Cyc 72 (3) 682. "Where an íiñstrumeát is not the gist of the action, a slight variance between that alleged and proved is not material". 3 N. S. 61. "Evidence that a curator was appointed in 1813 will be admitted under the allegation that he was appointed in 1815". — 477 — 4 N. S. 190. "Every variance in point of time betwoen the allegations and evidence is not fatal". 6 H. S. 9. "The date is not of the essence of the lease of labor; and evidence that it was made on a day different from that alleged is sufficient". 14 A. 793. "When plaintiff alleges a contract for making 300,000 bricks he may offer one to make 200,000 if defendant is not surprised and can suffer no injury". 5 A. 575. "But, in feenaral, the allegations of time, place, quantity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial, and need not be proved strictly as alleged". 1 Greenl. Bv. ^ 61; 31 Cyc 706 (10). "A variance which does not affect the gist of the action as alleged is immaterial, x. x x It has been decided in a number of cases that a variance to be material must be such as to mislead or surprise the adverse paéty". 31 Cyc 702,703. But under any conditions the plaintiff would have been permitted to amend his petition to state the corrsct date and place. 1 Greenl.6 73. The amount of repairs to plaintiff's car paid by the plaintiff insurance company is shown to have been $352.59. It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant Charles Mauthe be condemned to pay to the plaintiff the United States Fidelity and Guaranty Company the sum of Three Hundred and fifty-two 59/100 dollars with five per cent per annum interest from October 26th, 1920 till paid and all costs of suit in both Courts. Judgment reversed. Judgnent for plaintiff as prayed for. Hay 8th, 1922.