Adams v. Ross

• Decision Date: 22 April 1974
• Docket Number: No. 9790,9790
• Parties: Walter A. ADAMS v. Billy C. ROSS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 192

300 So.2d 192

Walter A. ADAMS v. Billy C. ROSS et al.

No. 9790.

Court of Appeal of Louisiana, First Circuit.

April 22, 1974.

On Rehearing June 28, 1974.

John F. Pugh, John L. Lanier, Thibodaux, for Billy Ross and State Farm Mut. Auto. Ins., Joel L. Borrello, New Orleans, for Hanover Ins. Co.

A. Deutsche O'Neal, Sr., Houma, for plaintiff-appellee Adams.

Before SARTAIN, J., and VERON and BAILES, JJ. Pro Tem.

BAILES, Judge Pro Tem.

This appeal is from the trial court judgment in favor of plaintiff, Walter A. Adams, and against defendants, Billy C. Ross (Ross), State Farm Mutual Automobile Insurance Company (State Farm), and Hanover Insurance Company (Hanover), in solido, for the sum of $60,000, together with interest and court costs. The appealed judgment cast Ross for this full amount but restricted liability of State Farm to $10,000 and Hanover to $50,000, these amounts being the respective liability policy limits.

On our findings herein, we affirm in part and reverse in part the judgment appealed.

On the night of May 8, 1964, plaintiff and three young girls, including the daughter of defendant Ross, together with Ross, their host driver, were returning to Houma from Baton Rouge where this group, together with others, had participated in a choir festival sponsored by certain Baptist Churches of Louisiana. The group had motored to Baton Rouge earlier this same day. The return trip was uneventful until they reached a point about one-fourth mile south of Labadiebille on Louisiana Highway One where the Ross vehicle left its right side of the highway, crossed the left or north bound traffic lane and ran into an embankment of a ditch on the bayou or east side of the highway.

None of the five occupants of the Ross vehicle were able to explain how the accident occurred. The three young girls occupying the rear seat and the plaintiff who occupied the right front seat were apparently asleep.

Mr. Ross, the host driver, testified that he, together with his passengers, left Baton Rouge at about 10:30 P.M. for their return trip to Houma. He stated that just prior to the accident he began to feel drowsy, that he remembered approaching or meeting two cars and was aware of having passed the first car but not the second car. He testified that there is a blank in his memory from the passing of this first car until after the accident. He recalled that the last time he looked at his vehicle speedometer his speed was 45 mph and that he did not know why he ran off the road.

Lt. Leonce E. Caballero, the trooper who investigated the accident testified that when he arrived at the scene at about 11:55 P.M., he found the car in the ditch on the east side of Highway One against an embankment. From his investigation he determined that the Ross vehicle was traveling south, crossed the north bound traffic lane and ran into the ditch on the Bayou La Fourche side. Only the front of the car was damaged. No skid marks were found.

The only witness to the accident was Robert H. Leblanc. He explained what he saw in the following quoted testimony.

'Q. Would you tell the jury just what it was that you saw?

'A. Well, I was going towards Napoleonville and the car was coming. There was a big, like an S curve, and when I seen the car coming he turned. He turned kind of sharp fast, and I thought he was turning in a driveway. When I got to him he had went over in the little ditch, and I stopped and picked them up out the car.

'Q. Now how did you know, how much of this oncoming car did you see?

'A. Not too much. I just seen his lights turn off.

'Q. Did you see that oncoming car make any signal?

'A. No signal.

'Q. How did you know that he turned?

'A. With his lights. I seen his lights, you see. I thought he was turning in a driveway.

'Q. From his standpoint, from the driver of that car's standpoint which way did he turn?

'A. Left. He turned left.

'Q. To his left. He turned to his left?

'A. To his left.

'Q. Did his car cross your lane of traffic?

'A. Yes, sir.'

Initially, plaintiff brought this suit against Ross, his automobile public liability insurer, State Farm, The First Baptist Church of Houma, Louisiana (Baptist Church), and its automobile public liability insurer, Hanover Insurance Company, alleging that he was injured through the negligence of Ross and that Ross was operating his vehicle for and on behalf and as an agent of the Baptist Church.

Plaintiff alleged specific negligent operation by Ross of his vehicle which he details as failing to pay attention to where he was going, failing to keep alert, driving in a sleepy or tired condition and going to sleep while driving. He further pleads the doctrine of res pisa loquitur, and for trial by jury.

The original answers of these defendants were essentially general denials of liability.

In the sequence of the pleadings, the plaintiff filed an amended and supplemental petition wherein he alleged the following facts, to-wit:

'18.

'The First Baptist Church, prior to and since May 8, 1961, has regularly and frequently sponsored attendance by its members at various organized church related functions away from Houma.

'19.

'The groups of members were and are normally transported to such functions by individual members who volunteer to drive the groups in their own cars.

'20.

'The First Baptist Church desired that adequate liability insurance coverage be provided to members who having volunteered to drive their own cars as described above, caused injury to others, and also in favor of other members injured by members who volunteered to drive their own cars.

'21.

'Prior to May 8, 1964, The First Baptist Church requested the Funderburk Agency to procure for it an insurance policy affording the coverage desired in the foregoing paragraph.

'22.

'The Funderburk Agency undertook to do so and, acting as agent for Hanover Insurance Company, issued to The First Baptist Church the policy referred to in paragraph 6 and 7 of the original petition, for which policy The First Baptist Church duly paid premiums.

'23.

'On the day of the accident complained of herein, members of The First Baptist Church, including Billy C. Ross and petitioner, attended a choir festival held in Baton Rouge under the sponsorship of The First Baptist Church.

'24.

'Billy C. Ross had volunteered to drive and did drive other members, including petitioner, to and from the choir festival in Baton Rouge in his own car.

'25.

'While Billy C. Ross was driving his car from the choir festival in Baton Rouge back to Houma, the accident complained of occurred.

'26.

'In the event that the policy issued by Hanover Insurance Company to The First Baptist Church does not by its written terms provide coverage in accord with the intent of the parties; and specifically to the accident complained of, then it should be reformed to do so.'

Third party actions were filed by the Baptist Church and Hanover against Ross and State Farm seeking indemnification of any liability to plaintiff. The Baptist Church filed third party action for reformation of its policy against Hanover, Funderburk Agency and the latter's errors and omissions insurer, St. Paul Fire and Marine Co. Finally, Hanover files a third party demand against Funderburk Agency and St. Paul Fire and Marine Insurance Company to recover any amount it must pay to plaintiff if the policy is reformed.

It was agreed that the jury would try the demands of the plaintiff against Ross, State Farm, Baptist Church and Hanover as well as the demands of the plaintiff for reformation of the Hanover policy issued to the Baptist Church. It was further agreed between the parties that the district judge would decide all other issues.

Although the Baptist Church filed a third party demand against Hanover and Funderburk Agency, Inc. (Funderburk), and St. Paul Fire and Marine Ins. Co. (St. Paul), for reformation of the liability policy it obtained through Funderburk, these actions terminated with the voluntary dismissal by the plaintiff of the Baptist Church (See Bolin v. Hartford Accident & Indemnity Company, La.App., 204 So.2d 49, and the cases cited therein), the third party actions by Hanover against Funderburk and St. Paul remained viable because plaintiff's policy reformation demands against Hanover was a relief sought in the main demand by supplemental and amended petition.

Therefore, under the agreement for a division of trial of the matters, the trial court was required to try and adjudicate the third party demands of Hanover against Funderburk and St. Paul, as well as the third party demands of Funderburk and St. Paul against J. Everett Eaves, Inc., the general agent of Hanover through whom the Hanover policy was written, all of which inextricably involved whether there was proof made such as to support reformation of the Hanover policy.

The trial court sustained the exception of one year prescription filed by Funderburk and St. Paul to the third party demand of the Baptist Church. Further, the trial court held that the plaintiff had no right of action against Hanover for reformation because of the lack of privy to the insurance contract between the Baptist Church and Hanover. Additionally, the trial court held that the essential legal requirements for reformation had not been proved.

In view of our holding, it is not essential that we pass on the correctness of the trial court's holdings.

Prior to submission of the case to the jury, the Baptist Church was dismissed as a defendant in the principal demand, on the exception of no right of action urging charitable immunity.

In addition to the general verdict, the jury was submitted interrogatories which it answered in writing.

These interrogatories and answers are as follows:

1. Was Billy C. Ross negligent?

Answer: Yes.

2. Did negligence, if any, of Billy C. Ross proximately cause the accident?

Answer: Yes.

3. Was Walter A. Adams negligent?

Answer: No.

4. Not applicable.

5. On May 8, 1964, did Mr. Ross have a very close economic...