Bunkie Funeral Home, Inc. v. McNutt

• Decision Date: 10 March 1982
• Docket Number: No. 8668,8668
• Citation: 414 So.2d 1263
• Court: Court of Appeal of Louisiana — District of US
• Parties: BUNKIE FUNERAL HOME, INC., Plaintiffs & Appellees, et al., v. Julian McNUTT, et al., Defendants & Appellants.

Page 1263

414 So.2d 1263

BUNKIE FUNERAL HOME, INC., Plaintiffs & Appellees, et al., v. Julian McNUTT, et al., Defendants & Appellants.

No. 8668.

Court of Appeal of Louisiana Third Circuit.

March 10, 1982.

Brittain & Williams, Jack O. Brittain, Natchitoches, for defendants-appellants-appellees.

Gold, Little, Simon, Weems & Bruser, Larry Feldman, Jr., Alexandria, for defendants-appellees-appellants.

Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Stafford, Stewart & Potter, Walter May, Voltz & Ware, Gus A. Voltz, Alexandria, for defendants-appellees.

Chris J. Roy, Alexandria, for plaintiffs-appellees.

Before CULPEPPER, GUIDRY and STOKER, JJ.

CULPEPPER, Judge.

This case was consolidated for trial, and for appeal, with Charles A. Roberts, Sr., et al. v. Jeff D. Keys, et al., 414 So.2d 1273, in which a separate judgment is being rendered by us this date. Both cases are for damages arising from accidents in which an automobile first struck and killed a black calf and then an ambulance struck the dead calf lying on the highway. The present case is by Bunkie Funeral Home, Inc. and Jeff D. Keys, respectively the owner and the driver of the ambulance, for property damage to the ambulance and for personal injuries sustained by the driver. The companion case by Mr. and Mrs. Charles A. Roberts, Sr., and Charles A. Roberts, Jr., is for personal injuries suffered by Mrs. Roberts and Charles, Jr. as occupants of the ambulance. Suit was filed against numerous defendants in the present case by Bunkie Funeral Home and Jeff Keys. These include Horace C. Pringle, driver of the first car which hit the calf, and his liability insurer, State Farm Mutual Auto Insurance, Charles Davis, one of the defendants alleged to be the owner of the calf, and Julian McNutt, the defendant found by the trial court to be the owner of the calf, and his liability insurer, Southern Farm Bureau Casualty Insurance Company. In the suit brought by Mr. and Mrs. Roberts and their son, the defendants include Horace C. Pringle and his insurer, Julian McNutt and his insurer, Jeff D. Keys, Bunkie Funeral Home, Inc., Mrs. Alena J. Thurman, president of the funeral home, and the liability insurer of both the ambulance and Mrs. Thurman, Aetna Casualty & Surety Company.

The trial judge found that defendant, Julian McNutt, was owner of the black calf and was negligent in allowing it to get on the highway, which negligence was the sole cause of the accident and injuries. He further found that Horace C. Pringle and Jeff D. Keys were not guilty of any negligence in the accident. The trial court awarded general damages for personal injuries to Charles Roberts, Jr. in the amount of $5,000, and to Barbara Roberts in the amount of $140,000, but denied the personal injury claim made by Jeff Keys. He also awarded property damages to Bunkie Funeral Home in the amount of $21,183.89 for destruction of its ambulance. From this judgment, Jeff D. Keys, in his posture as plaintiff in the present case, and defendants, Julian McNutt and Southern Farm Bureau, have appealed.

The following issues have been raised and briefed by the parties: (1) Whether the evidence was sufficient to prove defendant McNutt was owner of the calf; (2) whether Horace Pringle was guilty of negligence or non-negligent fault; (3) whether Jeff Keys was guilty of negligence or non-negligent fault; (4) if Jeff Keys was guilty of fault, whether Mrs. Alena Thurman may be held personally liable by piercing the corporate veil of Bunkie Funeral Home; (5) whether the $140,000 for general damages awarded to Barbara Roberts is excessive; (6) whether the award to Bunkie Funeral Home for property damage is excessive; (7) whether the award to Bunkie Funeral Home is inadequate (8) whether Jeff Keys is entitled to an award for general damages?

FACTS

This case arises out of two separate accidents which occurred on U. S. Highway 71 just north of Lecompte, Louisiana. Highway 71 is a stock law highway, upon which livestock are prohibited to go at large, LSA-R.S. 3:2803. At the point at which these accidents occurred, the highway is a divided, four-lane highway, and had been resurfaced just prior to the accident, leaving it a dark black color. The accidents occurred at night and the highway was unilluminated, except for the headlights of traffic. According to the testimony of both drivers, it had rained earlier in the day, but the road was not wet, nor was there standing water in the roadway.

At approximately 8:30 p. m. on July 10, 1977, Horace C. Pringle was proceeding north on Highway 71 in the right-hand lane at a speed of 50-55 miles per hour. He noticed, standing off the roadway to his right, a small, yellow, white-faced calf, which momentarily diverted his attention from the road in front of him. A short distance later, he hit a dark object located approximately at the center line of the two north bound lanes of the highway, apparently striking it with the left front fender of his automobile. He brought the car to a stop on the east shoulder of the road and backed his vehicle to a point a short distance south of the object he had struck, which he then discovered was a solid black calf, lying across the center line with its head pointed in an easterly direction. After turning on his emergency flashers, Mr. Pringle began making calls on his CB radio in an attempt to contact the State Police. After being informed via the radio that he should try the emergency channel 9, he changed channels and began to continue his calls. At this point, he glanced in his rear view mirror and noticed a set of flashing lights apparently heading north on the highway. Seconds later, the ambulance owned by Bunkie Funeral Home and driven by Jeff D. Keys, collided with the black calf as it lay in the middle of the roadway.

Earlier that same evening, Mr. Keys had received a call that emergency transportation was required for a patient at Bunkie General Hospital, who was to be transferred to Cabrini Hospital in Alexandria. He had proceeded to the hospital and picked up Charles Roberts, Jr., the victim of a shotgun accident, who had suffered an injury to his left hand. Charles, Jr. (Chuck) was accompanied by his mother, Barbara Roberts, who was a registered nurse. Mr. Keys had his flashing emergency lights on, with his headlights on low beam, and was proceeding north at approximately 65-70 miles per hour. At the time of the accident, the ambulance was in the left-hand lane of travel, having passed slower traffic in the right-hand lane several moments before the impact. Mr. Keys testified that he saw the animal just as he hit it but could not tell what it was at the time. After the impact, the ambulance skidded out of control, with the calf locked under the wheel, and hit the shoulder of the road. At this point, the calf was dislodged from the undercarriage, and the ambulance skidded into a ditch and flipped over against an embankment. As a result of this accident, all three occupants of the ambulance sustained personal injuries, and the ambulance itself was a total loss.

OWNERSHIP OF THE CALF

Several cattle owners in the area were sued as alleged owners of the calf which was killed in the accident. However, by the close of the evidence, all had been granted either summary judgments or judgments of dismissal, with the exception of defendants Charles Davis and Julian McNutt. The trial judge ruled in favor of the defendant Charles Davis, and against defendant McNutt, finding that the plaintiff had shown by a preponderance of the evidence that the calf belonged to McNutt, and that he was negligent in allowing it to go at large upon the highway. Defendant McNutt contends first that the trial court erred in placing the burden of proof on him to show that he was not owner of the calf, rather than on the plaintiffs to show that he was, and second, that the evidence was sufficient to show that Mr. McNutt did not own the calf. All plaintiffs contend that the evidence in the record supports the trial court's finding of McNutt's ownership.

None of the witnesses who viewed the dead calf could testify as to any distinctive markings of ownership on the carcass. It was not branded. There was no evidence of any openings or holes in any of the fences in the surrounding area through which the black calf and its apparent companion could have found their way to the highway. Therefore, the plaintiffs' case regarding ownership of the dead calf consisted entirely of circumstantial evidence.

The defendants rely on Motors Insurance Corporation v. Melder, 336 So.2d 954 (La.App. 3rd Cir. 1976), in which this court recognized the following standard against which the sufficiency of circumstantial evidence must be judged:

" 'Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.' Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905, 913 (La.1973); Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395, 397 (1963)."

It was further noted that this test allows the trier of fact to weigh other reasonable hypotheses against the one offered by the plaintiffs to determine whether the evidence as a whole constitutes a preponderance.

Mr. McNutt was the owner of the property fronting the highway at the point at which the accident occurred. His fences were well constructed and, as stated above, no holes were found in them. Access to Mr. McNutt's property could only be gained through his front gate, located just off Highway 71 and normally kept chained and padlocked. However, it was shown that, on the Friday and Saturday preceding the accident, the gate had been left open for a considerable length of time in order to provide admittance to vehicles of persons participating in a quarter horse show which was held on McNutt's property. Mr. McNutt testified that, because of the show, he had transferred all of...