Broussard v. State Farm Mut. Auto Ins. Co.

• Decision Date: 02 June 1966
• Docket Number: No. 1690,1690
• Parties: Antoine BROUSSARD, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee .
• Court: Court of Appeal of Louisiana — District of US

Page 111

188 So.2d 111

Antoine BROUSSARD, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee .

No. 1690.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1966.

Rehearing Denied June 29, 1966.

Simon, Trice & Mouton, by Phil Trice, Lafayette, for plaintiff-appellant.

McBride & Brewster, by William H. McBride, Lafayette, Levy, Burleigh & Russo, by Lawrence K. Burleigh, Morgan City Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, Jr ., Lafayette, for defendant-appellee.

Before TATE, HOOD, and CULPEPPER, JJ.

TATE, Judge.

The plaintiff Broussard was injured while riding as a passenger in an automobile. He brings suit for his personal injuries. This appeal concerns his claim against State Farm, the liability insurer of Knott, the driver of the plaintiff's vehicle. Based upon a jury verdict, the trial court dismissed the plaintiff's suit, and he appeals.

The chief issues of the appeal concern Knott's negligence, if any, and whether the trial court erred in the admission of certain evidence or in the exclusion of an entire deposition or parts thereof.

1. Independent appellate review of facts.

The case was submitted to the trial jury upon special verdicts requiring a special written finding by the jury upon each issue of fact, LSA-C.C.P. Art. 1811, as requested by the plaintiff. For the reasons to be stated below, we think that prejudicial error was committed in the exclusion and in the admission of certain evidence.

We are thus unable to accord the usual weight to the jury verdict. Such findings by the trier of fact are on review usually accepted in the absence of manifest error; this usual rule cannot apply where there is a reasonable possibility that the trial jury's finding was incorrectly based due to prejudicial rulings incorrectly excluding or admitting evidence by reason of which the jury might have reached a contrary verdict.

In commonlaw states, upon finding prejudicial ruling as to evidence, the case would ordinarily be remanded for new trial. This is not the rule in Louisiana. Under our state constitution, ordinarily appellate review in civil cases is 'on both the law and the facts'. Louisiana Constitution of 1921, Article VII, Section 29 . By reason of this constitutional mandate, a Louisiana appellate court will usually decide the appeal on its merits rather than remanding for new trial and new findings by the trier of fact, when the reviewing court is able to make an independent factual determination of the evidence as contained by the complete record of that sought to be introduced at the trial, including that ruled inadmissible by the trial court but nevertheless included in the record for purposes of appellate review, LSA-C.C.P. Art. 1636.

After reviewing the entire record, including a deposition of the plaintiff taken prior to trial which was incorrectly excluded from the evidence submitted to the jury (see below), we have concluded that the preponderance of the evidence supports the jury's special verdicts and that the trial court's judgment should therefore be affirmed. Before discussing the evidentiary rulings which vitiated the weight of the trial jury's verdict, it will be appropriate to consider the factual contentions of the parties as to the merits.

The plaintiff Broussard was injured while riding in an automobile driven by his friend Knott. Knott's automobile was insured by State Farm, the appellee, and the only defendant remaining in the case.

Broussard had initially also sued Martin, the driver of a truck with which Knott collided, as well as Martin's employer and the latter's liability insurer ('National Indemnity'). The latter initially denied coverage. However, on the day of the trial National Indemnity and the plaintiff Broussard compromised his claim for personal injuries.

Broussard's claim against State Farm, the remaining defendant, is based upon alternative contentions: (a) that State Farm is liable as the insurer of the negligence of Knotts, its insured; (b) that, alternatively, State Farm is liable under its 'uninsured motorists' coverage, on the contention that Martin's truck was not validly insured since National Indemnity's policy insuring such truck had lapsed.

2. Knott's negligence.

Knott collided with Martin's large truck and semi-trailer when it turned left across his path. The accident occurred at 1:30 A.M. At the time, visibility was impaired by fog, the extent of impairment being in dispute. The accident took place in a rural area on a main two-lane highway.

The evidence reflects without serious question that Martin, the driver of the left-turning truck, was negligent in turning left across Knott's path. Martin's lookout was directed to his left in order to discover the driveway into a service station which he was approaching, and he failed to make adequate lookout for oncoming traffic before turning leftward across the opposing traffic's lane of the highway in which Knott was approaching.

The plaintiff-appellant contends that Knott's negligence was a concurring proximate cause of the accident. Knott was allegedly negligent in driving at a speed of 40--45 mph when his visibility was impaired by fog.

As to the extent of impairment, Knott himself testified that the fog had become pretty steady from about a mile before the accident, as a result of which he had slowed to 40--45 mph. He testified that he could see the road ahead pretty clearly for about 100--200 feet. Before this distance, however, Knott at first saw only the two headlights of the oncoming truck. He kept his eyes on them until the truck came closer. He stated he did not see any turn-blinker lights lit on the truck.

According to Knott, when the vehicles were within 75--100 feet of one another, the truck turned suddenly left across his path. He immediately applied his brakes, leaving skidmarks of 90 feet, but nevertheless struck the truck toward its rear, near the center of the roadway. At the time, the rear of the 50-foot long truck-trailer still protruded about 4--5 feet into its former lane of travel, the front having turned across the other lane of the 24-foot highway and into the driveway.

The truck driver Martin testified as to a thicker fog and consequently much less visibility, as well as to a less sudden left turn. He also testified that he had flicked on his turn-blinker lights long before he turned, which Knott's testimony in effect denied.

The investigating state trooper estimated visibility at the time and place of the accident as 300 feet or somewhat less. He found that the rear of the 50-foot truck-trailer still protruded across Knott's lane and was still across at least a third of the other (south) lane from which it had turned left (north), and that it was struck two feet over (south of) the center line by Knott's automobile which had made 90 feet of brake skidmarks before the collision. As we interpret his testimony, the truck driver informed him of his speed at the time, which he believed to not be 'over fifteen or ten or fifteen miles an hour' (although the trooper did not have his notes at the time). Tr. 353. No objection was made to this last testimony.

The plaintiff Broussard professed to have lost his memory at the time of the trial in November, 1965. However, at a discovery deposition several months earlier (February, 1965), he had testified fairly clearly as to the accident of October 11, 1963, some eighteen months earlier. This entire discovery deposition should have been admitted (see below); when it is considered as a whole, despite portions which indicate inadequate lookout by Knott, Broussard's testimony in the main supports Knott's version of the accident rather than Martin's. For instance, he noticed only the two headlights of the truck, Tr. 275, no blinking turn lights, when almost instantaneous with the accident his attention was called to oncoming traffic by Knott's exclamation to him to watch out, Tr. 289 . Furthermore, as he saw these headlights they were still coming from his left, or in other words just turning suddenly across Knott's path. Tr. 296--297. As a whole, the discovery deposition supports Knott's version that the truck turned suddenly across Knott's path, following which he immediately applied his brakes and cautioned Broussard as to the impending accident.

We think that the preponderance of the evidence, including the physical facts of the collision, supports a finding that with Knott approaching at 40--45 mph the truck-driver Martin suddenly and without warning turned left across Knott's path at a speed of 10 mph or so, and at a time when Knott could not reasonably have avoided the accident.

When a motorist's visibility ahead is impaired, it is true, he should reduce his rate of speed to such extent and keep his automobile under such control as to reduce to a minimum the possibility of accident from collision with objects ahead. Demarest v. Travelers Ins. Co., 234 La. 1048, 102 So.2d 451; Seal v. Core, La .App. 1 Cir., 175 So.2d 676; Annotation, Automobiles--Atmospheric Conditions, 42 A.L.R.2d 13. Nevertheless, the degree to which the motorist must reduce his speed depends upon the particular circumstances, including the factual degree to which his visibility is obscured.

At any event, under our construction of the evidence any excessive speed by Knott had no causal relationship with the accident resulting when without previous warning the truck turned suddenly left across Knott's path at a time when Knott, at his speed of 40--45 mph, was unable reasonably to avoid the ensuing collision.

In order for the negligence of a party to be a 'legal' or 'proximate' cause of injury sustained by another, it must not only be a cause-in-fact of the injuries, i.e., a substantial factor in producing them. Additionally the risk and harm resulting in accidental injury must be within the scope of protection afforded by the duty to others breached by such negligence. Dixie Drive It Yourself...