Bailey v. Trinity Universal Ins. Co.

• Decision Date: 17 November 1960
• Docket Number: No. 100,100
• Citation: 124 So.2d 575
• Parties: Alice Marie BAILEY, Plaintiff-Appellee, v. TRINITY UNIVERSAL INSURANCE COMPANY et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 575

124 So.2d 575

Alice Marie BAILEY, Plaintiff-Appellee, v. TRINITY UNIVERSAL INSURANCE COMPANY et al., Defendants-Appellants.

No. 100.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 1960.

Rehearing Denied Dec. 14, 1960.

Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, Jr., Lafayette, for defendants-appellants.

Alfred Ray Ryder, Oberlin, for plaintiff-appellee.

Before TATE, FRUGE and HOOD, JJ.

FRUGE , Judge.

This is a suit brought by Mrs. Alice Marie Bailey for damages for the death of her husband, W. H. Bailey, which resulted from an accident that occurred on March 5, 1959. Negligence causing the accident is charged against H. L. Fontenot, an employee of Dalmer H. Jines. The Trinity Universal Insurance Company had issued a policy against public liability covering the vehicle owned by Jines which was involved in the accident. Upon trial by jury there was judgment against Jines and his insurer in the aggregate of $18,000. The insurer, Trinity Universal Insurance Company, denying liability, has appealed suspensively from that part of the judgment which held it and Jines liable jointly and in solido for $10,000.

The facts are substantially these. On March 5, 1959 Fontenot was en route to the Bailey residence to make a delivery of welding supplies. He drove his supply truck down a lane leading to Bailey's house. As he neared his destination his truck bogged in a hole which had been filled with soft dirt. After unsuccessful attempts to extricate the truck a system was devised whereby the truck could be removed from the bog-hole. A truck with a winch was backed up to the rear of defendant's truck. Since the terrain was slippery another truck was tied to the winch-truck and clogged to serve as an anchor to the winch-truck. The delivery or supply truck was pulled out and over the bog-hole, but since traction was poor it was decided that the winch-truck should drive up a distance, unrolling its winch cable, and then Fontenot would attempt to drive the delivery truck out under its own power. If that was to fail then the winch-truck, which was to remain tied to the supply truck, would tow it onto higher terrain. The evidence shows that prior to each attempt to extricate the supply truck an agreement or understanding was made as to that attempt to remove the truck and that either Bailey or the anchor truck driver, Brown, would give signals to Fontenot and the winch-truck driver, Carrier. In accordance with the above described plan the winch-truck began paying out cable in order to drive forward. At this moment, Fontenot, upon seeing the cable being let out and that Bailey was to the side, climbed into the delivery truck and commenced backing before the winch-truck had moved and without any signal being given him to commence backing nor warning by him that he was going to back up. He did not stop backing until he had rammed into the winch-truck thereby pinning Bailey, who had stepped between the trucks, against the left back side of the winch-truck causing internal injuries and hemorrhage which resulted in his death.

Plaintiff alleges that the sole proximate cause was the negligence of Fontenot in backing his truck into the winch-truck, and without waiting until it had been moved, and in failing to observe that it had not not moved. They allege that there was no contributory negligence because Bailey was justified in assuming that Fontenot would act in accordance with the agreement and wait until the winch-truck had moved to its planned position.

Defendant alleges that Fontenot was not negligent in so backing his truck, and alternatively that if he owed a duty to anticipate Bailey's presence, then in such case reasonable care was employed, and further in the alternative that Bailey was contributorily negligent in placing himself behind the truck, or that he assumed the risk, and finally that Bailey should have discovered his peril and removed himself from the danger area. Therefore, they maintain the judgment of the trial court reflecting the verdict of the jury is contrary to the law and facts and pray reversal thereof.

Defendant, in support of its position, cited several cases which enunciate certain general principals of law. Palsgraf v. Long Island R.R., 1928, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, and Campbell v. All State Insurance Company, La.App.1959, 112 So.2d 143, were cited as authority for the proposition that the risk to the plaintiff must be foreseeable and that only such dangers as are known or reasonably to be apprehended need be provided for. See Roca v. Prats, La.App.1955, 80 So.2d 176, and Conrad v. Bertucci, La.App.1935, 158 So. 596. However, the peculiar factual situation here harmonizes these general principals with the specific circumstances of this case in favor of the plaintiff. The case of Cotten v. Butler, La.App.1949, 39 So.2d 914, is cited as being a similar factual situation. In that case defendant had last seen plaintiff in a position of safety before backing and therefore had a right to assume that plaintiff would remain there. Although under normal circumstances this would be true yet in this case Bailey also had a corresponding right to assume that Fontenot would not back until the winch-truck had been moved or until he had been signaled to back. The pattern in the...