Blanchard v. Blanchard

Decision Date30 November 1965
Docket NumberNo. 1555,1555
PartiesLelby BLANCHARD, Plaintiff-Appellee, v. Jacque H. BLANCHARD et al., Defendant-Appellant.
CourtCourt of Appeal of Louisiana — District of US

Lewis & Lewis, Seth Lewis, Jr., Opelousas, for defendant-appellant.

Tate & Tate, by I. J. Burson, Jr., Mamou, for plaintiff-appellee.

Before TATE, FRUGE and SAVOY, JJ.

SAVOY, Judge.

Plaintiff brought suit in Louisiana against his brother, Jacque H. Blanchard, and Springfield Insurance Company, the brother's liability insurance carrier, for damages incurred in an automobile accident which occurred in Port Arthur, Texas. Both plaintiff and defendant brother are residents of Louisiana.

Plaintiff's petition alleges that he was a guest passenger in the insured automobile driven by his brother late in the afternoon of December 15, 1962; that his brother had picked him up in Port Arthur and was driving him to the Texaco docks there so that plaintiff, a seaman, could debark on his ship; that, in so doing, the defendant brother, heedless to plaintiff's warning, went too fast in a heavy fog, failed to negotiate a curve and collided with a roadside sign.

The defendant insurer filed a motion to dismiss as to it on the basis of the accident having occurred in Texas, thereby prohibiting a direct action against the insurer in Louisiana.

Additionally, both defendants answered plaintiff's petition, the defendant insurer reserving its rights under the motion to dismiss, alleging that since the accident occurred in Texas, the action should be governed by the Texas Guest Statute (Article 6701b, Vernon's Annotated Civil Statutes), requiring that in order for a guest passenger to recover under that statute it must be shown that the '* * * accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others', and on that basis, denying any liability to plaintiff.

The defendant insurer's motion to dismiss was sustained by the lower court, and plaintiff's suit dismissed as to it.

Proceeding as against the defendant brother alone, trial was held on the merits, the lower court finding in favor of plaintiff and awarding damages totalling $4,589.70.

From that judgment, this appeal has been brought.

On appeal, plaintiff makes no contention regarding the dismissal of the action as to the insurance carrier. It is clear under the provisions of LSA-R.S. 22:655 that the accident must have occurred in Louisiana in order to support a direct action against the insurer, and we take it that plaintiff concurs.

The issue for determination, then, is the presence of such negligence on the defendant brother's part as would support the lower court judgment in plaintiff's favor.

Plaintiff contends, in effect, that defendant's conduct was grossly and wantonly negligent, thus allowing recovery under the Texas guest statute. Defendant, on the other hand, contends to the contrary, taking the position that, at worst, his acts were those of ordinary negligence only, prohibiting recovery under the statute.

Two witnesses testified; plaintiff and the defendant brother. Their testimony, however, is not conflicting on the whole, and from the totality of it, the following emerges:

1. The posted speed limit on the road where the accident occurred was twenty-five miles per hour;

2. The defendant knew of that speed limit, and admitted that he was exceeding it, his estimated speed being thirty-five or forty miles per hour;

3. It was a very foggy evening, and visibility was limited to approximately fifteen to thirty feet with the car lights on dim;

4. As the automobile began to approach the curve in the road, plaintiff warned his brother to 'Watch', or 'Watch out', feeling that he was going too fast, considering the fog and the up-coming curve;

5. The defendant brother was familiar with the road, as was plaintiff, and knew of the presence, location and general shape of the curve;

6. The defendant brother testified that he figured that plaintiff's warning was an admonition regarding his speed; that, nevertheless he did not really slow down in any appreciable degree or apply his brakes; that he did not slow down because '* * * I thought I could turn it, I guess, being that I was familiar with the road,' that he did not and could not see the curve until he was already on it and leaving the roadway; that, had he heeded plaintiff's warning at the time it was given, 'chances are' he could have slowed down enough to negotiate the curve.

We are not unmindful of the fact that testimony in a suit involving equities between brother and brother might, under some circumstances, be looked upon with a jaundiced eye. However, in the instant case there is nothing whatever in the record to suggest that either party was relating any more or less than the truth as he saw it. The trial judge saw and heard the witnesses, and his belief in their credibility is apparent. Therefore, we will take the evidence, as reflected by the record, at face value.

The pertinent portion of the Texas guest statute reads as follows:

'No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.'

In his brief, defendant has cited, among others, the case of Fancher v. Cadwell, Tex.Civ.App., 309 S.W.2d 545. In the body of that opinion, numerous Texas authorities are cited and reviewed, including cases cited by defendant in the instant case. It is apparent that the Texas courts have, at various times, given varying interpretations of the rule of law expressed by the guest statute, some...

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