Pierre v. Allstate Ins. Co.

• Decision Date: 23 February 1970
• Docket Number: No. 49911,49911
• Citation: 257 La. 471,242 So.2d 821
• Parties: Percy H. PIERRE et al. v. ALLSTATE INSURANCE COMPANY and Opial Stinson, wife of/and Harry Brooks.
• Court: Louisiana Supreme Court

Page 821

242 So.2d 821

257 La. 471

Percy H. PIERRE et al. v. ALLSTATE INSURANCE COMPANY and Opial Stinson, wife of/and Harry Brooks.

No. 49911.

Supreme Court of Louisiana.

Feb. 23, 1970.

On Rehearing Dec. 14, 1970.

Rehearing Denied Jan. 18, 1971.

Vial, Vial & Lemmon, Harry T. Lemmon, Leon C. Vial, III, Hahnville, for appellants.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman and Curtis R. Boisfontaine, New Orleans, for appellees.

McCALEB, Justice.

The nine children of Louis Albert Pierre are suing Allstate Insurance Company, the insurer of Opial Stinson and her husband, Harry Brooks, for the wrongful death of their father, who was fatally injured in an accident on Louisiana Highway 52 when a pickup truck owned by the St. Charles Parish Police Jury was run into from its rear by a dump truck owned by Puglise Brothers and operated by one James D. Miller.

The salient facts of the case are these: The accident occurred about 4 P.M. on August 12, 1964. The weather was clear, the highway was dry and the road was straight and level.

Louisiana Highway 52 is the main cross artery on the west bank of the Mississippi River in St. Charles Parish. It is a twolane black-topped road and connects the River Road at Luling on the north with U.S. Highway 90 at Boutte on the south. The road has a narrow shoulder and a shallow ditch on each side and, during the summer of 1964, there was heavy dump truck traffic thereon hauling river sand from the Mississippi River batture for use in the construction of additional traffic lanes on Highweay 90. Because of this heavy traffic, both sides of the highway were posted their entire length with 'No Parking' signs.

Several hours prior to the accident Harry Brooks parked his wife's Chrysler automobile, insured by Allstate Insurance Company, facing south, partially on the shoulder and partially blocking the southbound lane of the highway, and left it there unattended. Shortly before the accident, a pickup truck driven by one Champagne and owned by the St. Charles Parish Police Jury, in which decedent was a passenger together with several other employees, travelling in the southbound lane approached the parked Chrysler and, being unable to pass due to the presence of oncoming traffic in the northbound lane, its driver brought the truck to a stop behind the Chrysler. Within seconds from the time the pickup truck came to a stop, it was struck from the rear by the Mack dump truck. As a result of the collision decedent was hurled from the pickup truck onto the highway where he was run over by the dump truck and killed instantly.

Miller, the driver of the dump truck, appeared as a witness in the case and he testified, as stated by the Court of Appeal, '* * * that he had been following the pickup truck for about 3/4 of a mile; that his speed was 30 miles per hour, and that he had been keeping a distance of about 40 feet between the two vehicles. He further testified that just prior to the accident he took his eyes off the road to glance at some children playing on the hospital grounds to his left, and that when he looked back he realized the pickup truck was coming to a stop and immediately slammed on his brakes and attempted to swerve to the left into the northbound lane but it was too late to avoid hitting the pickup truck; that the dump truck struck the left rear of the pickup truck knocking it into the ditch on the right side of the highway. The shock of the imkpact caused the deceased to fall onto the road where he was run over by the dump truck and killed.' See La.App., 221 So.2d 846 at page 848.

Before filing this suit, plaintiffs compromised and settled all their claims against the owner and driver of the dump truck, its insurer, the St. Charles Parish Police Jury, the driver of the Police Jury vehicle and its insurer for the sum of $15,000, specially reserving, however, all rights to proceed against the owner and operator of the Chrysler automobile and their insurer. As a part of this settlement, plaintiffs bound themselves to indemnify and hold harmless the payors of the $15,000 against any claims which might be asserted against them for contribution or otherwise as a result of the accident.

The present suit brought against Allstate, ¹ the insurer of the parked Chrysler, is founded on the theory that, since the Chrysler was parked partially blocking the southbound lane of highway in an area posted with no parking signs in violation of R.S. 32:143, subd. A(14), such violation was negligence per se which had causal connection with the accident. Relying upon the holding of this Court in Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), and the later holding of the Court of Appeal, Fourth Circuit, in Champagne v. Southern Farm Bureau Cas. Ins. Co., 170 So.2d 226, counsel for plaintiffs profess that the negligent parking of the Chrysler was a substantial factor in bringing about the accident and that Allstate is therefore liable.

On the other hand, Allstate contends that the sole and only proximate cause of the accident was the negligence and want of due care on the part of Miller, the driver of the dump truck, in failing to keep a proper lookout and have his truck under control so that he would have been able to stop it before crashing into the rear of the Police Jury truck.

Following a trial on this issue, the district judge found that the sole proximate cause of the accident was the failure of Miller to maintain an alert and continuous lookout ahead and that whatever statutory violation or negligence of which Brooks might have been guilty in parking partially on the highway was '* * * too remote an act to figure in the death of plaintiffs' father.'

On plaintiffs' appeal to the Court of Appeal, Fourth Circuit, that court on first hearing, although inclined to agree with the trial judge that the illegal parking of the Chrysler was too remote to have causal relation with the accident, but believing that this Court's decision in the Dixie Driver It Yourself case compelled a different result, reversed the trial court's judgment, concluding that the negligence of Brooks in parking on the highway in violation of the statute must be regarded as a concurring proximate cause of the accident. However, a rehearing was granted by the Court of Appeal and, thereafter, the original decree was set aside and the judgment of the district court affirmed. In its opinion on rehearing, the court reasoned that the instant case is factually distinguishable from the Dixie Drive It Yourself case in that the Chrysler automobile was not involved in the collision and the pickup truck had come to a stop behind the Chrysler for some moments before it was rear-ended by the dump truck. These facts, the court deduced, rendered the negligence of Brooks in illegally parking the Chrysler too remote to be a 'cause-in-fact' of the collision. 221 So.2d 851.

Thereafter, the plaintiffs applied here for certiorari. The writ was granted and the case has been argued and submitted for our decision.

Plaintiffs initially dispute the factual finding of the Court of Appeal: (1) that the Chrysler was not involved in the collision, and (2) the pickup truck of the Parish Police Jury had been stopped for an appreciable length of time before the crash. In support of plaintiffs' position, counsel point to the photograph of the Chrysler introduced in evidence showing that it came to rest in the middle of the road after the accident and sustained damage to its rear.

This complaint is inconsequential for the Court of Appeal, in making the statement that the Chrysler was not involved in the collision, obviously meant that the car was not actively engaged in a driving maneuver but was parked when it was struck by the parish pickup truck, which was propelled into the Chrysler's rear by the impact. Also, the length of time the parish pickup truck had been stopped before the dump truck struck it is unimportant in the determination of whether the antecedent illegal parking of the Chrysler had causal connection with the accident and was a proximate cause thereof. Indeed, that is the only question presented for decision and, after a careful consideration of the undisputed facts, we have no hesitancy in concluding that the decisions of the district court and the Court of Appeal on rehearing are correct.

At the outset, it is to be borne in mind that, albeit the parking of the Chrysler in violation of R.S. 32:143, subd. A (14) is negligence per se, it is not actionable negligence unless it was a legal cause of the collision. Brown v. S. A. Bourg & Sons, Inc., 239 La. 473, 118 So.2d 891; and D. & D. Planting Co. v. Employers Casualty Company, 240 La. 684, 124 So.2d 908.

Since, unquestionably, the primary direct and proximate cause of the accident was the gross negligence of the dump truck driver in running into the rear of the stopped pickup truck in broad daylight on a straight road, plaintiffs could be successful only were they able to show that the antecedent illegal parking of the Chrysler was a contributing proximate cause thereof. Rowe v. Travelers Insurance Company, 253 La. 659, 219 So.2d 486 (1969). Or, stated another way, as it was put in the Dixie Drive It Yourself case, the negligent parking must be found to be '* * * a cause-in-fact of harm to another (plaintiffs' father in this case) if it was a substantial factor in bringing about that harm.' (Words in parentheses added.)

We cannot perceive under the facts of this case that the illegal parking was a proximate cause or a contributing factor to the accident. This is because, as noted by the Court of Appeal, the accident would have happened in the same way if the driver of the pickup truck had been required to stop at the time he did stop, or slow down his forward progress for any other reason. Thus, as is often the case, if the truck driver had to stop because of a slow down in traffic due to a driver...