Austrum v. City of Baton Rouge
| Decision Date | 28 July 1972 |
| Docket Number | 8932,Nos. 8931,s. 8931 |
| Citation | 267 So.2d 284 |
| Parties | Andrew AUSTRUM et al. v. CITY OF BATON ROUGE et al. Willie D. LEWIS v. Andrew AUSTRUM et al. |
| Court | Court of Appeal of Louisiana — District of US |
Joseph F. Keogh, City Parish Atty., and Edward V. Fetzer, Asst. City Parish Atty., Baton Rouge, for defendant-appellant.
James R. Coxe, III, Baton Rouge, for plaintiff-appellee Austrum.
Robert J. Jones (Highway Dept.), Baton Rouge, for defendant-appellee Highway Dept. of La.
Walton J. Barnes, Baton Rouge, for plaintiff-appellee Lewis.
Before LANDRY, BLANCHE and TUCKER, JJ.
The above captioned and numbered suits which were consolidated for trial arose out of a collision which occurred February 2, 1970, at the intersection of Perkins Road and Terrace Avenue in the City of Baton Rouge. This intersection was controlled by a single semaphore signal which alternately showed red, amber, and green signals to control the flow of traffic on the two intersecting streets. By the testimony of several witnesses, some of them city-parish employees, the signal had not functioned properly for several days prior to the date of the accident, and in particular on the day and at the time of the accident.
When the accident occurred plaintiff, Andrew Austrum, with his wife, Edna Austrum, as his guest passenger, was proceeding northerly on Perkins Road. By his own testimony he had entered the intersection on an amber signal. Meanwhile the plaintiff in the second suit Willie D. Lewis, who was proceeding in an easterly direction on Terrace Avenue, had entered the same intersection on a green signal and was struck by the Austrum vehicle.
Alleging that the malfunctioning signal light was the proximate cause of the accident, Andrew and Edna Austrum charged the City of Baton Rouge, the Parish of East Baton Rouge, and the State of Louisiana with negligence in the maintenance and operation of a traffic signal light which was functioning improperly despite actual and constructive notice of the malfunction.
In the Austrum suit Andrew Austrum, as head and master of the community, sued the City and State in solido to recover special damages for medical, hospital and ambulance, as well as related expenses for the medical care and treatment of both himself and his wife and for the property damages to his automobile. Mrs. Austrum's medical and hospital expenses, including intermittent periods of hospitalization, from February 2, 1970 through March 23, 1970, were alleged to total the sum of $1995.00 with her future medical expenses estimated to be the sum of $2,000.00. Mr. Austrum's medical expenses were listed at $125.00, and the value of his automobile, considered to be a total loss as a result of the accident, was figured to be the sum of $750.00. The entire figure claimed for special damages totals the sum of $4,870.10.
For his bodily injuries, pain and suffering and mental anguish Mr. Austrum claims damages in the total sum of $2,000.00, and Mrs. Austrum, for her extensive bodily injuries, pain and suffering, including the aggravation of a pre-existing condition, and complications arising therefrom, and mental anguish, claimed damages in the total amount of $50,000.00.
In the second suit, No. 8932 of this docket, Willie D. Lewis sued Andrew Austrum, the City of Baton Rouge, the Parish of East Baton Rouge, and the State of Louisiana, jointly and solidarily or alternatively, individually and severally, under the doctrine of Res ipsa loquitur, for his injuries resulting from the aforementioned accident. In the alternative plaintiff charged the City, Parish, and State with negligence as outlined above, and Andrew Austrum with negligence in failing to keep a proper look-out and in operating his automobile in such a fashion that he was unable to stop or to avoid hitting him after he had already preempted the intersection. In his alternative plea plaintiff alleges defendant Austrum's negligence to be a proximate cause of the accident. He sued for damages as follows:
Drug and present and future
medical expenses in the
composite sum of ................. $ 232.91
Bodily injuries, physical and
mental pain and suffering, past
and future in the total sum of ... 30,000.00
Cost of repairs to his 1969
model Chevrolet car .............. 2,109.70
These expenses and damages reflect a total claimed in the Lewis suit of $30,342.61.
By a supplemental and amended petition plaintiffs Austrum, in our Docket No. 8932, the first suit, later joined Willie D. Lewis as a party defendant and co-tortfeasor, alleging his negligence in the operation of his vehicle as a concurrent cause of the accident, in the alternative, and only in the alternative that the signal light be held either to have been functioning correctly at the time of the accident, or that it be held a concurrent cause of the accident.
As a defendant in the Austrum suit Willie D. Lewis answered the supplemental petition, charging Andrew Austrum with contributory negligence, and brought a third party demand against the City of Baton Rouge, the Parish of East Baton Rouge, and the State of Louisiana through the Department of Highways, for indemnification or contribution in the event that he be cast in judgment as a result of plaintiffs Austrums' claims against him, on the basis that the aforementioned third party defendants were guilty of joint and concurrent negligence which was a proximate or concurrent cause of the damages and injuries sustained by plaintiffs Austrum.
The City of Baton Rouge filed an exception of no cause of action in both suits, alleging that under the Plan of Government of the Parish of East Baton Rouge and the City of Baton Rouge, duly adopted, as amended, and in particular Sections 3.01, 5.01 and 5.02 thereof, the power and duty of maintaining signal lights lies with the Parish of East Baton Rouge.
The State of Louisiana was included as a party defendant in both suits, because Perkins Road, on which the signal light in question was located, is a state highway. The State of Louisiana through the Department of Highways had contracted with the City of Baton Rouge for maintenance of this particular signal light, however, by a contract dated July 1, 1969, signed by A. R. Ratcliff, Jr., for the Department of Highways, and W. W. Dumas for the City of Baton Rouge, under the authority of Act 40 of 1955 of the Legislature of the State of Louisiana, said contract being in effect until June 1, 1970. The State of Louisiana filed an exception of immunity in both suits, and later the State of Louisiana through the Department of Highways filed a third party demand against the City of Baton Rouge under the aforesaid contract with the City of Baton Rouge, in which it asked the City of Baton Rouge to indemnify and hold harmless the Highway Department for any damage resulting from the failure of the City of Baton Rouge to perform its duties properly under the contract. On April 15, 1971, and upon stipulation of counsel for all parties in these suits, proceedings against the State of Louisiana through the Department of Highways were dismissed, without prejudice.
Plaintiff Edna Austrum departed this life on April 26, 1971. Upon affidavit to that effect Judge Luther Cole substituted her seven, living major children by a previous marriage as parties plaintiff for her in Suit No. 143,623, now our Docket No. 8992, by order of the court dated August 20, 1971. The children substituted in accordance with the terms of Article 2315 of the Civil Code and Article 801 of the Code of Civil Procedure, were Erwin E. Neely, Jr., Edward E. Neely, Myron Melvin Neely, Estelle Neely, Marie Neely Pendarvis, Harold C. Neely, and Thomas A. Neely. In a most unusual action Judge Cole, in the same order, substituted Alternatively Edna Austrum's grandchildren by a predeceased son, Charles Neely, Karen Neely, and Diana Neely. Judge Cole stated that this order was in accordance with the provisions of Article 801 of the Code of Civil Procedure.
Meanwhile defendant Willie D. Lewis had answered plaintiff's motion for substitution of parties by exception and allegation to the effect that C.C.P. Article 801 requires more proof of survivorship and/or heirship than an affidavit executed by unidentified strangers; that under C.C. Art. 2334 any recovery deceased might have obtained from an action for damages resulting from offenses and quasi offenses would have been her separate property, for which her surviving spouse would have had no right or cause of action, C.C. Art. 2315 notwithstanding; and thirdly, that C.C. Art. 2315 does not specify grandchildren among the list of those to whom a cause of action survives.
The Parish of East Baton Rouge also excepted to the substitution of parties without specifying the names of the individuals to whom it excepted, and alleged that even in the case of those properly substituted the proper procedures had not been followed, and that the order substituting them should be vacated and recalled.
Upon trial of these consolidated actions the trial judge found that the signal light at the intersection of Perkins Road and Terrace Avenue was in fact malfunctioning at the time of the collision and that this circumstance was a proximate cause of the accident. He found Willie D. Lewis free of negligence and Andrew Austrum negligent in a degree which contributed to the accident and barred his personal claims and also his claims as head and master of the community between himself and deceased.
In the second suit, No. 145,629, No. 8932 of our docket, the judge awarded Willie D. Lewis Two Thousand Six Hundred Forty-Four and 21/100 ($2,644.21) Dollars for property damage, medical expenses, and loss of wages, and Four Thousand and no/100 ($4,000.00) Dollars for physical injuries, pain and suffering, or Six Thousand Six Hundred Forty-four and 21/100 ($6,644.21) Dollars in total, against Andrew Austrum and the Parish of East...
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