#### BREELAND et al. v. KELLY et al.

No. 2935.

Court of Appeal of Louisiana. First Circuit.

Oct. 3, 1947.

Ott & Watts, of Franklinton, for appellants.

Stafford & Pitts, of Alexandria, for ap-pellees.

DORE, Judge.

This is a suit brought by the parents of Cecil Dewitt Breeland for the alleged wrongful death resulting from an automobile accident on the Franklinton-Tyler-town Highway in the vicinity of Clifton, Louisiana, at approximately 7:30 P.M., on September 1, 1945. They allege that the accident was caused solely by the negligence of C. L. King, who was operating an International truck owned by E. L. Kelly, and they sue the said E. L. Kelly and his insurer, Metropolitan Casualty Insurance Company of New York, praying for damages for the wrongful death of their son, in the total sum of $30,000.

After due hearing of the case, the trial judge rendered judgment in favor of the defendants, dismissing the suit at the costs of plaintiffs. From this judgment the plaintiffs have appealed.

Some of the facts in the case are clearly shown by the evidence and are undisputed. On other points, as is usual in these damage suits, there is some contradictory testimony.

It is admitted the C. L. King was operating an International truck belonging to defendant E. L. Kelly at the time of the accident and was in the course and scope of his employment. He left Alexandria, Louisiana, about 8:00 A.M. with a load of cattle and hogs, which he hauled to Tylertown, Mississippi, a distance of some 368 miles, and arrived at Tylertown at about 4:30 or 5:00 P.M. He then unloaded, had something to eat, and on his return trip had reached the point of the accident with his empty truck and trailer at about 7:30 or 7:45 P.M. daylight saving time.

It is shown by the testimony of Mrs. Eva Mae Stogner that on the day of the accident she met Purvis Thomas in Tyler-town, Mississippi, and that he drove her in his Ford coupe from Tylertown, Mississippi, to Warnerton, Louisiana, a distance of about 15 or 18 miles, and that they arrived there at about 6:00 P.M., and at Warner’s store, in Warnerton, they met Cecil Dewitt Breeland, who joined them. In her testimony she admits that her boy friend, Thomas, and young Breeland had a drink while there at Warner’s store, and that before leaving Thomas bought a half pint bottle of brandy. It was brought out in the testimony that she had told an insurance adjuster and a State policeman after the accident that Breeland and Thomas had had a *couple*of drinks, and the trial judge reached the conclusion, as shown by his opinion, that they had had at least a couple of drinks while at Warner’s store in Warnerton, La. Mrs. Stog-ner testified further that they saw Hezzie Keen and her mother at Warner’s store and that Hezzie Keen was driving a pickup truck, accompanied by her mother, and that while they were not together they met at Warner’s store and that after leaving they were followed shortly after-wards by Hezzie Keen, and that Keen thereafter passed them and that when they arrived near the scene of the accident, the cattle truck and trailer of the defendant Kelly, being driven by C. L. King, *48was proceeding- south in the same direction as themselves, followed by the Keen pickup truck, who, in turn, was followed by them; that the cattle truck was driving in the middle of the road, approximately a quarter over the center line, and that Keen blew his horn and passed the truck, and that thereupon Thomas, in the Ford Coupe, accompanied by her in the center and young Breeland on the right, blew his horn and proceeded to pass the truck, having to get on the left shoulder due to the fact that the truck would not pull over to his right, and that just as they were about clear, the truck suddenly turned to its left and struck the right rear fender of the Ford coupe; and that as a result Thomas lost control of his car and went into the *east*ditch, and in attempting to resume control and to bring the car back on the highway, the coupe turned over a couple of times, throwing her,and young Breeland and Thomas out of the car, resulting in the death of Breeland, who was killed instantly. Her testimony is to the effect that Thomas was driving at the rate of about 25 miles per hour at the time of the accident, which occurred some four miles south of Warnerton, and one mile north o-f Clifton. Testimony, was introduced to show that she admitted shortly after the accident that the cause of the accident was the fact that they were driving too fast; but in her direct testimony she vigorously denied having made any such statement in the same manner that she denied having made the statement that Thomas and young Breeland had had a “couple” of- drinks in Warnerton.

Aside from Mrs. Stogner, the only other eye witnesses to the actual accident were her friend Thomas, and C. L. King, the driver of the cattle truck, John D. Sims, who was riding with the C. L. King driver in the cattle truck cab, and Enochs Bick-ham, in - front of whose place the accident occurred. Purvis Thomas was not called as a witness.

C. L. King testified that he was driving his truck on his right hand side of the road at about 35 miles per hour when he was passed by the pick-up truck being driven by Hezzie Keen; that said pick-up truck was making approximately 60 or 65 miles per hour; that almost at the same time the Ford coupe passed him, and in doing so slightly scraped his left front fender and that the Ford coupe, being driven at a rate of speed of about 60 miles per hour, thereupon swerved into the ditch on the left or east side of the highway and thereafter went from left to right, and then turned over some three times and came to rest at the mail box of Mr. Bickham, some 50 yards away from his truck; that upon being side-swiped by the Ford coupe he at once applied his brakes by pulling an emergency lever and stopped at a distance of 5 or 6 feet. King testifies further that the application of the emergency brake caused his truck to leave tire marks and that he examined those tire marks, which showed that his right wheels were on the right shoulder of the highway. Fie states further that the impact on his truck was very slight, causing a mere scratch on his left front fender.

John D. Sims, a colored man who was riding with C. L. King, testified to the same effect as King.

Mr. Enoch Bickham, who obviously has rio interest in the case, testified that he witnessed the accident from his place, some 200 feet from the road and .that he saw the Ford coupe turn over three times before coming to rest at his mail box, which was torn down by the impact. He, too, estimates the speed of the Ford coupe at some 60 miles per hour.

After the accident, C. L. King discovered that young Breeland was dead, and that the other two occupants of the Ford coupe were probably badly hurt, and he notified the State police about the accident and some 45 minutes later a State policeman, to-wit, A. O. Passman, came over to investigate the accident.

Passman’s testimony shows that the black top road at the point of the accident is 20 feet wide, with shoulders of part dirt and gravel, approximately 3 or 4 feet wide; that from the physical facts the Ford coupe had traveled some 45 to 50 yards before coming to rest as shown by the cut up ground in the ditch where it first went out of control, and other marks along- the way. He is one of the witnesses who *49stated that the remark was made by Mrs. Stogner to the effect that the accident was caused by fast driving. Officer Passman also testified that he found in the Thomas car a half pint bottle of peach brandy which was empty.

It might be added that on rebuttal, Hezzie Keen and his friend, Mrs. Lula Stogner, mother of Eva Mae Stogner, vigorously denied that either they or the occupants of the Ford coupe were driving fast and stated that the real cause of the accident was the negligence of the driver of the cattle truck in refusing to allow enough room to be passed properly.

It seems obvious from the testimony in this case that the plaintiff has failed to’ establish any negligence on the part of C. L. King. Such claim of negligence is based entirely on the testimony of Hezzie Keen and Mrs. Lula Stogner, and Mrs. Eva Mae Stogner, and that testimony is not only vigorously contradicted by C. L. King and John Sims and Enoch Bickham, but is discredited by the physical facts as brought out by officer Passman, as well as by King and Mr. Bickham. Surely, if the Ford coupe had been travelling at the ■rate of 25 miles per hour, it would not have turned over three times, and gone a distance of some 34 yards coming to rest on a mail box and knocked said mail box down; nor could it have passed the cattle truck which was going 35 miles per hour. Moreover, if the truck had run into the Ford coupe, as alleged, the damage to the truck’s front fender would have been more than a slight scratch on the side thereof. Moreover, it seems clear from the evidence that Purvis Thomas and his friend, young Breeland had at least two drinks at Warner’s store in Warnerton, and that during the next four miles they consumed the contents of a half pint of peach brandy. The amount of intoxicants taken may not have been enough to render them intoxicated, but certainly was sufficient to give them the feeling of exhilaration and recklessness which was demonstrated by excessive fast driving and which was the actual proximate cause of this unfortunate accident in our opinion.

Suffice it to say that we do not find any manifest error in the finding of fact of the trial judge to the effect that no negligence on the part of King, the driver of the cattle truck, has been shown, and to the further effect that the sole cause of the accident was the reckless driving of Purvis Thomas, the driver of the Ford coupe, aided and abetted by the other occupants of his car.

For these reasons, the judgment appealed from is affirmed.