Botsay v. Campanella

• Court: Court of Appeal of Louisiana
• Writing for the Court: BARNETTE
• Citation: Botsay v. Campanella, 224 So.2d 107 (La. App. 1969)
• Decision Date: 02 June 1969
• Docket Number: No. 3560,3560
• Parties: Louis A. BOTSAY, on Behalf of his Minor Son, Felix Botsay v. Frank J. CAMPANELLA, Fidelity General Insurance Company of Chicago, and Market Insurance Company of Chicago.

Page 107

224 So.2d 107

Louis A. BOTSAY, on Behalf of his Minor Son, Felix Botsay v. Frank J. CAMPANELLA, Fidelity General Insurance Company of Chicago, and Market Insurance Company of Chicago.

No. 3560.

Court of Appeal of Louisiana, Fourth Circuit.

June 2, 1969.

Rehearing Denied July 7, 1969.

LeBrun, Karno & Lockhart, Wallace C. LeBrun, Metairie, for Frank J. Campanella, plaintiff in reconvention and third-party plaintiff-appellee.

Nelson, Ormond & Nelson, John P. Nelson, Jr., Michael A. Dessommes, New Orleans, for Fidelity General Ins. Co., third-party defendant-appellant.

Before HALL, BARNETTE and LeSUEUR, JJ.

BARNETTE, Judge.

This is an appeal by Fidelity General Insurance Company of Chicago from a judgment of $5,000 in favor of Frank J. Campanella, its insured and third-party plaintiff herein, under the provisions of the uninsured motorist clause in his liability insurance policy issued by Fidelity General. The cause of action arose out of an automobile collision on January 17, 1965, between an automobile driven by the minor plaintiff, Felix Botsay, and a taxicab owned and driven by Frank J. Campanella.

Suit was filed initially by Louis A. Botsay on behalf of his minor son Felix against Campanella and his insurer, Fidelity General, to recover damages allegedly sustained by the minor, Felix Botsay. The defendants answered denying liability and affirmatively pleading in the alternative the contributory negligence of the plaintiff. By a separate pleading the defendant Campanella answered and assumed the position of plaintiff in reconvention against Louis A. Botsay and of third-party plaintiff against his insurer, Fidelity General, seeking recovery on the uninsured motorist provision of his policy for the personal injuries sustained by him. Fidelity General answered the third-party petition of Campanella denying liability and in turn making Botsay its third-party defendant for such sums as it may be cast in favor of Campanella. Subsequently Fidelity General amended its answer and third-party pleading to allege that the negligence of Campanella was the sole cause of the accident, or, in the alternative, a contributing cause barring his recovery on the uninsured motorist clause.

When the case was called for trial the original petitioner dismissed his petition leaving as the only issues for trial Campanella's reconventional demand against Botsay (which was not contested) and the issue between Campanella and Fidelity General on the uninsured motorist provision of the policy. The third-party petition of Fidelity General against Botsay was not mentioned at trial and the judgment is silent thereon. It will, therefore, be treated as denied. Soniat v. Whitmer, 141 La. 235, 74 So. 916 (1917); Brady v. American Insurance Company, 198 So.2d 907 (La.App.4th Cir. 1967); Watt v. Stann, 195 So.2d 343 (La.App.4th Cir . 1967); Mexic Bros., Inc. v. Sauviac, 191 So.2d 873 (La.App.4th Cir . 1966).

There was judgment in favor of Campanella, as plaintiff in reconvention against Botsay and as third-party plaintiff against Fidelity General, in solido, in the amount of $5,000 (the limit of the uninsured motorist coverage), and against Botsay individually for the additional amount of $9,967.85. Botsay did not appeal. Fidelity General perfected a suspensive appeal from the judgment in Campanella' favor against it. No mention is made either in the petition or the order for appeal or in the bond indicating an intent to appeal from that portion of the judgment which by silence rejected Fidelity General's third-party demands against Botsay. Furthermore, when Fidelity General filed its amended answer to Campanella' third-party petition, it alleged that Campanella's negligence was the 'sole cause and or contributing cause of the accident * * *.' Thus it effectively negated its former alleged cause of action against Botsay. It is apparent that Fidelity General intended to abandon its third-party petition against Botsay. Accordingly, the only issue we will consider herein is that of liability of Fidelity General to Campanella on the uninsured motorist provision of the policy.

There is no issue of quantum since the policy limit is $5,000 and Campanella' injuries justify an award of damages quite in excess thereof. Furthermore, it is admitted that Botsay was an uninsured motorist. Therefore, the only issue on this appeal is negligence. As stated above, appellant contends that Campanella's negligence was the sole cause of the accident, or alternatively, that his contributory negligence bars his recovery. It pleads error of the trial court in not so finding as a fact.

The accident occurred at the intersection of North Carrollton Avenue and Dumaine Street in the City of New Orleans at about 10 p.m ., on January 17, 1965. North Carrollton Avenue is a wide paved thoroughfare running in a generally north-south direction, and consists of two roadways (each approximately 30 feet wide) divided by a neutral ground. Dumaine Street is a paved street (28 feet in width) and runs in a generally east-west direction. North Carrollton Avenue is the favored thoroughfare which is so indicated by stop signs posted on Dumaine Street. Campanella was traveling on Dumaine Street in a southeasterly direction and the Botsay vehicle was traveling on North Carrollton in a southwesterly direction. The collision occurred in the intersection.

In his reasons for judgment, the trial court judge found the following material facts which we quote and adopt as a part of this opinion:

'As matters of fact, the Court found:

(1) That Campanella had been driving his taxi on Dumaine toward the Mississippi River and upon reaching North Carrollton, he halted for a stop sign;

(2) That there were other vehicles parked along the curbing to Campanella's left, partially blocking the view of traffic proceeding on North Carrollton toward Canal Street;

(3) That Campanella slowly nosed his taxi into the intersection, to obtain a better view, and brought his cab to a stop;

(4) That, meanwhile, the 1957 Chevrolet driven by young Felix Botsay was approaching on North Carrollton (toward Canal) at an excessive rate of speed and in the lane nearest the North Carrollton neutral ground; and

(5) That when he saw Campanella, Botsay vigorously applied his brakes, causing his car to swerve to the right and collide with Campanella's taxi.

'Had Botsay remained in the lane he had been driving in, there would have been no collision.

'The policeman who testified, Harold Wilson, said that Campanella had driven about eight (8 ) feet past the North Carrollton curbing before the impact, meaning that he couldn't have been close to Botsay's original lane, the one nearest the neutral ground. There are three lanes (in each direction) on North Carrollton. The police officer estimated Botsay's speed at 45--50 miles per hour.

'The impact was considerable and knocked Campanella's taxi 78 feet from the spot where the collision occurred. Botsay's car left 62 feet of dark skid marks and an additional 15 feet of lesser skid marks.

'The proximate cause of this accident, in the Court's opinion, was Botsay's excessive speed and the fact that he was unable to control his car after applying pressure to the brakes. With traffic partially blocking Campanella's view of North Carrollton, the Court believes that Campanella acted reasonably in inching forward for a better view, and then bringing his car to a stop when he saw Botsay approaching in the lane nearest the neutral ground at a high rate of speed.

'The physical facts indicate that Botsay was driving at an excessive rate of speed; also, the testimony of two witnesses substantiates this. Further, the Court was definitely more impressed with...