Strother v. State Farm Mut. Auto. Ins. Co.

• Citation: 238 So.2d 774
• Decision Date: 25 May 1970
• Docket Number: No. 8009,8009
• Parties: Raymond D. STROTHER, Individually and as Administrator of and on Behalf of His Minor Children, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana (US)

Page 774

238 So.2d 774

Raymond D. STROTHER, Individually and as Administrator of and on Behalf of His Minor Children, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.

No. 8009.

Court of Appeal of Louisiana, First Circuit.

May 25, 1970.

William Carl Roberts, of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for appellants.

Sheldon D. Beychok, of Franklin, Moore, Beychok & Cooper, Horace C . Lane, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Justice.

The appeals by defendants John P. Riddell and his insurer, Hanover Insurance Company, in this and the consolidated case of State Farm Mutual Automobile Insurance Company v. Hanover Insurance Company, et al., 238 So.2d 779, Number 8010 on the docket of this Court, are from judgments holding Riddell and an uninsured motorist, Roland N. Williams, responsible as co-tort feasors for a rear end, chain reaction type of automobile accident. In this action plaintiffs, Mr . and Mrs. Strother, were awarded damages for personal injuries. Mr . Strother was also awarded damages for and on behalf of his injured minor children, Dane and Kristan, in addition to medical expense. In the companion case, State Farm was awarded judgment against Riddell and Hanover for the sum of $1,741.50 paid State Farm's insured, Strother, for the total loss of his Volkswagen automobile. In the Strother case, judgment was rendered against Riddell and Hanover only, with reservation of Strother's rights against State Farm under the uninsured motorist provision of his policy in the event Riddell and Hanover do not respond in damages. Despite the trial court finding Williams a joint tort feasor no judgment was rendered against him in either action as he was never properly served with process. No appeal has been taken by any party from the judgment dismissing all claims against defendant Williams.

Riddell and Hanover maintain the trial court erred in holding Riddell liable. Alternatively, they contend all the Strothers were awarded excessive damages for personal injuries. State Farm appeals alternatively contending the awards to the Strothers should be reduced in the event Williams, the uninsured motorist, be found solely at fault and State Farm therefore be primarily liable under the uninsured motorist clause of Strother's policy. We affirm the judgment rendered below.

The following pertinent facts are either stipulated or undisputed. State Farm's policy insures Strother's vehicle in limits of $5,000--$10,000 and contains an uninsured motorist clause. Hanover is Riddell's insurer with policy limits the same as those of State Farm. State Farm paid Strother $1,741.50 for the total loss of his vehicle. Total medical expense incurred by Strother on behalf of himself, Mrs. Strother and his children amounted to $47.00. The lawful speed limit in the vicinity of the accident was 45 miles per hour. The awards made the Strothers aggregate less than $5,000. In effect the trial court held that as Riddell's insurer, Hanover's liability was that of prime insurer and that State Farm's liability under its uninsured motorist clause was that of excess insurer.

The accident in question occurred during daylight but late in the afternoon of March 17, 1968, on the steep and relatively narrow Livonia Overpass on Louisiana Highway 190, Pointe Coupee Parish. Both the highway and overpass consist of four vehicular lanes, two each for eastbound and westbound vehicles. The east and westbound lanes are separated by a divider or abutment approximately two and one half feet high. The overpass is 833 feet long. Four vehicles, all traveling easterly in the inside eastbound lane, were involved in the accident. After negotiating the overpass, the lead vehicle, a Ford driven by Mary Scott Reaves, stopped on the flat surface of the highway in the inside eastbound lane approximately 20 feet east of the point where the incline of the overpass ends. Strother stopped behind the Reaves automobile. Riddell, following Strother, was either stopped or in the act of stopping when his vehicle was struck from behind by that of Williams. The impact drove Riddell's car into the Strother automobile which in turn hit the Reaves vehicle from behind.

Strother's testimony is essentially that he was proceeding easterly accompanied by his wife, who occupied the front seat with him, and his two children who were in the rear of the vehicle. When he reached the crest of the overpass, traveling in the inside eastbound lane, he observed an accident approxmately 50 yards ahead in his lane of travel. He stopped his vehicle approximately three car lengths behind the Reaves car which had stopped ahead. He observed that the Reaves vehicle was not on the overpass but on level highway. After stopping, he looked through his rear view mirror and observed that there was not much distance between his car and the crest of the overpass. While thus observing to his rear, he saw the Riddell vehicle approaching from the rear and noted that it appeared to be reducing its speed. As he was watching the Riddell car approach, Mrs. Strother, who was looking behind through the rear window of the car, remarked that they were going to be struck. Strother responded by asserting that he thought the overtaking vehicle might stop and almost instantly thereafter the collision occurred. Strother was not certain whether the Riddell car stopped before striking his car. Neither was he certain that he struck the Reaves automobile. He was certain that he experienced a series of jolts and his vehicle was pushed down the highway, off the overpass and onto the shoulder of the highway. He stated his car was pushed a total distance of approximately 40 yards and came to rest on a flat portion of the highway about 20 yards past the eastern end of the overpass.

The gist of Mrs. Strother's testimony confirms that of her husband concerning the events attending the accident. After remarking that it appeared they would be hit, she concerned herself with attempting to protect the children. It was her opinion that an automobile going fast could not stop in the distance between the crest of the overpass and their stopped Volkswagen. She also stated that when she last saw the Riddell car, it was about one car length away. In attempting to protect the children, she lost sight of the Riddell car and could not say whether it came to a stop before the collision .

In substance, Roland N. Williams testified he was proceeding easterly in heavy traffic which was moving intermittently in that the cars would proceed forward and then come to a complete stop. He was proceeding at a speed of 15--20 miles per hour approximately one-half a car length behind Riddell. He noted two accidents ahead, one in his own eastbound lane of travel and another in one of the westbound lanes. He noticed that Riddell was watching the accident in the westbound lane of travel. He stated that Riddell came to a complete stop following which his car struck Riddell lightly from the rear. After the impact, he observed the Riddell car 'take off' as though the driver had mashed on the accelerator. After the initial impact, the Riddell car struck the Strother vehicle and then went off the roadway. Williams also stated that whereas title to the vehicle he was driving was in his mother's name, in reality the vehicle was his and was uninsured as to liability.

Mrs. Thelma Mitchell, mother of defendant Williams, confirmed that she and her husband were record owners of the vehicle her son was driving. She also acknowledged there was no liability insurance covering the automobile. Additionally, she testified the automobile sustained total damages of $540.00 in the...