Brown v. Hawkins
| Decision Date | 01 February 1971 |
| Docket Number | No. 8214,8214 |
| Citation | 244 So.2d 896 |
| Parties | Willie L. BROWN, Plaintiff-Appellant, v. Wennie HAWKINS et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Johnnie A. Jones, Baton Rouge, for plaintiff-appellant.
John S. White, Jr., of Kennon, White & Odom, Baton Rouge, for defendants-appellees.
Before LOTTINGER, SARTAIN and PICKETT, JJ.
Plaintiff Brown sustained injuries as a guest passenger in a car owned by Wallace Cain and driven by Norman McKnight on October 15, 1967, about 7:40 p.m. when the car left the road on which they were driving, Louisiana Highway 73 near Dutchtown, and collided with a car being operated by Wennie Hawkins. Plaintiff sued Cain, McKnight and Mrs. Hawkins for his resulting damages.
The trial judge dismissed the suit as to Cain and Mrs. Hawkins and rendered a default judgment in the amount of $1,500.00 against Norman McKnight, who has still made no appearance in these proceedings. Plaintiff has appealed from the dismissal of the suit against Mrs. Hawkins and has asked for an increase in the award of damages. He also contends that the trial judge erred in refusing to allow Norman McKnight to be brought into court during the trial so that plaintiff could call him as a witness. The refusal was based on the fact that plaintiff had not listed McKnight as a witness at the pre-trial conference and had indicated to the judge that he did not intend to call McKnight as a witness at trial.
We do not find that the trial judge erred in disposing of that procedural issue. We also affirm the judgments in the case on the merits both as to the default judgment against Norman McKnight in the amount of $1,500.00 and as to the dismissal of the suit against Wennie Hawkins.
In this case, plaintiff alleged that, as McKnight was driving north on Highway 73, he was confronted with a dangerous situation created by the negligence of Mrs. Hawkins. Prior to the accident, the Hawkins car had been parked on the left or east shoulder of the road facing south toward the oncoming McKnight car. Mrs. Hawkins had turned on her headlights and right turn blinker, preparing to cross the northbound lane and head south. This was in a curve in the road so that when McKnight entered the curve, plaintiff alleged that he was deceived by these lights and thought the Hawkins car was in his lane or about to enter it. Plaintiff alleged that McKnight swerved to the right, off the road, to avoid a collision and that such action was caused by a deceptive situation created by the Hawkins car. It was established that the McKnight car did leave the road to the right and collide with the Hawkins car on the shoulder. However, since plaintiff's host driver, McKnight, did not appear at the trial, there is no proof in the record that his leaving the roadway was caused by the position or lights of the Hawkins car. There is no proof that he ever saw the car, and in the absence of such testimony by the driver as to why he swerved or left the road, the trial judge was correct in concluding that plaintiff did not prove a causal relationship between the position of the Hawkins car and the accident. Certainly, the court cannot assume what an absent witness saw and did or what such a witness would relate in court if he appeared, particularly where the entire issue of proof of causation in the plaintiff's action would depend on such an assumption.
It is for these reasons that the refusal of the trial judge to allow plaintiff to subpoena McKnight during the trial is so important in this case.
The rules of court for the Nineteenth Judicial District are not in the record but the discussion in the transcript between the trial judge and plaintiff's attorney, Mr. Jones, clearly identifies the disputed question: Is a party entitled to call as his witnesses at trial a person not listed on the pre-trial order?
The following excerpts from the transcript show the reasoning of the trial judge following plaintiff's request to call McKnight:
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Williams v. Harvey
...that before the accident she had promise as a singer which was adversely affected by the loss of her front teeth. In Brown v. Hawkins, 244 So.2d 896 (La.App.1st Cir. 1971) writs refused, 258 La. 572, 247 So.2d 393, a male plaintiff sustained what the court described as very serious lacerati......
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Combs v. Hartford Ins. Co.
...of the case, constitute sufficient reasons for allowing the trial judge to require adherence to the pre-trial order. Brown v. Hawkins, 244 So.2d 896 (La.App. 1st Cir.1971), writ refused, 258 La. 572, 247 So.2d 393 (1971). A pre-trial order may only be modified at trial to prevent manifest i......
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