Dominique v. Insurance Co. of North America

• Citation: 195 So.2d 312
• Decision Date: 13 February 1967
• Docket Number: No. 2476,2476
• Parties: Anthony C. DOMINIQUE et ux. v. INSURANCE COMPANY OF NORTH AMERICA et al.
• Court: Court of Appeal of Louisiana (US)

Page 312

195 So.2d 312

Anthony C. DOMINIQUE et ux. v. INSURANCE COMPANY OF NORTH AMERICA et al.

No. 2476.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 13, 1967.

A. J. Marciante, New Orleans, for plaintiffs-appellants.

Lemle & Kelleher, Albert H. Hanemann, Jr., New Orleans, for defendants-appellees.

Before REGAN, SAMUEL and BARNETTE, JJ.

BARNETTE, Judge.

This is a suit for damages arising out of an automobile accident on January 27, 1964, in which the plaintiff Mrs. Alice Dennis Dominique sustained personal injuries. Her husband, Anthony C. Dominique, seeks recovery of special damages for automobile repair and expenses incident to his wife's injuries. From a judgment rejecting their demands and dismissing their suit they have appealed .

Mr. Dominique was driving his automobile, in which his wife was a passenger, on Franklin Avenue in the city of New Orleans, when it was struck from the rear by an automobile driven by Lawrence E. Luzader. It is alleged that the Luzader automobile was struck from the rear by a truck owned by S. K. Whitty and Company, Inc., and driven by George W. Davis, its employee, with such force as to cause it to collide with the one occupied by plaintiffs. The Insurance Company of North America, liability insurer of Whitty, was made defendant along with Whitty and Davis. Luzader was not named defendant by plaintiffs, but was made a third party defendant by Whitty, Davis, and their insurer. Luzader did not file an answer and was not present for trial.

The evidence discloses that all three vehicles were traveling on Franklin Avenue in the direction of the lake at a point 35 to 50 feet on the lake side of the intersection of Franklin Avenue with Gentilly Boulevard. At that point Franklin Avenue is a divided street with two lanes for moving traffic and one parking lane on each side of the neutral zone.

Plaintiffs' automobile was brought to a complete stop in the right traffic lane to await the discharge of a passenger from another car which had stopped ahead of them. There is no doubt that they remained in this position for several seconds before the impact. The Truck driven by Davis was traveling in the left, or neutral ground, lane and would have passed plaintiffs' stopped car without incident, except for the sudden approach of the Luzader vehicle in the right lane occupied by plaintiffs. Luzader apparently was overtaking Davis and, upon seeing his lane blocked, attempted to swerve out of his lane in front of Davis to pass plaintiffs on their left. In attempting this maneuver, Luzader's car was struck on the left rear by the front of the Davis truck. The right front of the Luzader car struck plaintiffs' automobile on its left rear.

Considerable testimony was taken in an attempt to establish which impact occurred first. Plaintiffs argue that the Luzader automobile was struck first and forced into plaintiffs' automobile. They contend that Davis was at least contributorily negligent and that the points of impact on the automobiles and truck contradict Davis' version of the accident.

Much stress is laid upon the testimony of Davis that when he first saw the Luzader automobile it was on his right with the left rear door approximately even with the front of his truck when Luzader hit the car in front. Counsel...