Bailes v. U.S. Fidelity & Guar. Co.

• Decision Date: 19 August 1987
• Docket Number: No. 18890-CA,18890-CA
• Citation: Bailes v. U.S. Fidelity & Guar. Co., 512 So.2d 633 (La. App. 1987)
• Court: Court of Appeal of Louisiana
• Parties: James Vance BAILES, Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Defendants-Appellants.

Page 633

512 So.2d 633

James Vance BAILES, Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, et al Defendants-Appellants.

No. 18890-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 19, 1987.

Rehearing Denied Sept. 17, 1987.

Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendants-appellants.

Nelson, Hammons & Johnson by Sydney B. Nelson, Shreveport, for plaintiff-appellee.

Before FRED W. JONES, Jr., NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

Suit was filed on October 26, 1981 by James Vance Bailes against Robert Mann, Razorback Oil Tools, Inc. (Razorback) and United States Fidelity and Guaranty Company (USF & G) seeking recovery for damages resulting from an automobile accident. The trial judge filed a written opinion and rendered judgment against Robert Mann, Razorback and USF & G, in solido, in the amount of $189,874.97, plus interest and costs. From this judgment, Razorback and USF & G have appealed. Robert Mann has failed to appeal and therefore that portion of the trial court judgment applicable to him is now final.

In this appeal, appellants claim that the trial court erred in refusing to permit the introduction into evidence of certain testimony and documents, in concluding that the car driven by Robert Mann was owned by Razorback and in granting an excessive amount of damages. For the following reasons, we affirm in part and reverse in part the trial court judgment.

BACKGROUND FACTS

On the night of October 27, 1980, at approximately 9:30 p.m., plaintiff, Mr. James Vance Bailes, while operating his automobile along Highway 169 in Caddo Parish, Louisiana, was involved in an automobile accident with the defendant, Mr. Robert Mann, who was operating a 1977 Oldsmobile automobile registered to Razorback Oil Tools, Inc.

The accident occurred at the intersection of Highway 169 and Buncomb Road. Mr. Bailes was proceeding along Highway 169. The accident occurred when Mr. Mann, traveling at approximately 50 m.p.h. on the Buncomb Road, failed to observe a stop sign and proceeded into the intersection when Mr. Bailes had the right-of-way. The collision knocked Mr. Bailes' vehicle off the road and caused it to flip over and come to rest upside-down.. Mr. Bailes suffered serious injuries in the accident.

The investigating officer charged Mr. Mann with failure to yield at a stop sign. Mr. Mann later entered a plea of guilty to that charge.

Mr. Mann was a native of England, but at the time of the accident he was living here with his uncle, Mr. Roscoe Smith, an officer of Razorback. Mr. Mann was employed by Razorback.

Plaintiff filed suit against Mr. Robert Mann, Razorback Oil Tools, Inc. and United States Fidelity and Guaranty Company, Razorback's insurer.

Following a trial on the merits, the trial court found in favor of the plaintiff and rendered judgment against all three defendants, in solido, in the total sum of $189,874.97, together with interest thereon from date of judicial demand, until paid, together with all costs, including expert witness fees. Thereafter, appellants, Razorback and USF & G, perfected suspensive appeals.

THE TRIAL COURT PROCEEDINGS

In its written opinion, the trial court stated that the two primary issues involved in this case were (1) whether the Oldsmobile automobile driven by Mr. Mann at the time of the accident was owned by Mr. Mann or by Razorback, and (2) the amount of damages sustained by the plaintiff.

With respect to ownership of the vehicle, the evidence at trial showed that at the time of the accident, the car was registered to Razorback. At the scene of the accident, the investigating officer noted that the vehicle was owned by Razorback. Later, Razorback attempted to salvage parts from the vehicle.

The vehicle was listed on the USF & G policy as a vehicle belonging to Razorback. Further, following the accident two claim notices (Accord Auto-Liability Accident Notices) were filed by Razorback with USF & G. Both of these notices show that Razorback was still the owner of the vehicle. The notices were filed October 28, 1980 and October 27, 1981 and were signed by Mr. K.K. LaFleur, an officer of Razorback. Also, the insurance agent who wrote coverage for Razorback testified that he was never notified that the vehicle in question had been sold and that the vehicle had not been deleted from the USF & G policy.

Appellants contended in the trial court, as they do here, that prior to the accident, Mr. Mann had purchased the automobile from Razorback. At trial, the appellants sought to prove that Mr. Roscoe Smith, on behalf of Razorback, sold the automobile to Robert Mann, the purchase price being represented by a promissory note in the amount of $2,500 executed by Mr. Mann in favor of Razorback.

When the case was tried, Mr. Mann was no longer living with his uncle, Roscoe Smith, and had returned to England. Mr. Mann did not testify at trial, nor did Mr. Smith.

Although neither Mr. Mann nor Mr. Smith testified at trial, appellants attempted to show, through the deposition testimony of Mr. K.K. LaFleur, that Razorback, acting through Mr. Smith, sold the vehicle to Mr. Mann. Plaintiffs objected to this testimony as hearsay. The objection was ultimately sustained by the trial court and the testimony was not considered by the trial court in arriving at its decision.

Appellants also attempted to introduce into evidence the answers of Mr. Mann to various pretrial interrogatories and requests for admissions of fact which had been propounded to him and answered in England. In these answers, Mann stated that he had purchased the vehicle from Razorback prior to the accident. Plaintiff also objected to the admissibility of this evidence and this objection was also sustained by the trial court.

The promissory note, allegedly given by Mr. Mann for the purchase price of the automobile was introduced into evidence by appellants. Plaintiff objected to this evidence, contending that no proper foundation had been laid to connect the promissory note to the alleged sale of the automobile. The trial court later ruled that the note was also inadmissible.

In a further attempt to show that Mann purchased the vehicle from Razorback, appellants introduced into evidence a copy of the second claim notice submitted by Razorback to USF & G on which someone had written the words, "insured sold vehicle to Robert Mann." It was never determined who wrote the information on the copy of the claim notice, but Ms. Wanda Mitchell, an insurance adjustor for USF & G, stated that the clerks often sent new information to the adjustors by making a copy of a prior notice, thereby insuring that the new information was credited to the proper account, and writing the new information on the copy of the old notice.

After reviewing all the admissible evidence, the trial court ruled that the automobile in question was owned by Razorback at the time the accident occurred and that the USF & G policy was therefore in effect and provided coverage for the accident.

The court found that the accident was caused by the negligence of Mr. Mann. No evidence was presented to show that plaintiff was at fault to any degree. Therefore, Mr. Mann was found to be 100 percent at fault in causing the accident, and that finding by the trial court is not made an issue in this appeal.

The trial court then awarded damages to Mr. Bailes in the following amounts: $75,000 in general damages, $70,000 in loss of future income, $40,000 in loss of past earnings and past earning capacity, $4,874.77 in special damages for medical expenses and $200 for an expert witness fee.

SPECIFICATIONS OF ERROR

In seeking reversal of the trial court judgment, appellants contend that the trial court erred in the following respects:

1. The trial court erred in finding that K.K. LaFleur, an officer of Razorback Oil Tools, Inc., could not testify regarding the sale of a corporate asset, i.e., the automobile driven by Robert Mann at the time of the accident sued upon.

2. The trial court erred in ruling that the answers to interrogatories and the answers to requests for admissions filed by Robert Mann were inadmissible.

3. The trial court erred in ruling that the promissory note evidencing the debt owed to Razorback Oil Tools, Inc. by Robert Mann was inadmissible.

4. The trial court erred in finding that the vehicle driven by Robert Mann at the time of the accident was owned by Razorback Oil Tools, Inc.

5. The trial court erred in awarding $75,000 in general damages to the plaintiff.

6. The trial court erred in its awards of loss of past and future income and earning capacity.

TESTIMONY OF K.K. LAFLEUR

The appellants contend that the trial court erred in refusing to admit into evidence the deposition testimony of K.K. LaFleur concerning the sale of the automobile to Robert Mann. The trial court ruled that this portion of Mr. LaFleur's testimony was hearsay. We agree.

Any part or all of a deposition may be entered into evidence at a trial, so far as admissible under the rules of evidence applied as though the witness were then present and testifying. LSA-C.C.P. Arts. 1450 and 1451. At trial, plaintiff's objection to the admission of the deposition was a hearsay objection. The trial court upheld this objection.

Hearsay evidence is defined as testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter. In other words, it is a statement that is offered into evidence to prove the truth of the matters therein stated, but that is not made by the author when a witness before the court at the particular trial in which it is so offered. Hearsay evidence is excluded as unreliable because it is based upon statements made by persons who are not before the court, have not been sworn and are not available for cross examination. State in Interest...