Calvert Fire Ins. Co. v. Lewis, 42725
| Citation | 93 So.2d 194,231 La. 859 |
| Decision Date | 21 January 1957 |
| Docket Number | No. 42725,42725 |
| Court | Supreme Court of Louisiana |
| Parties | CALVERT FIRE INSURANCE COMPANY v. Jack LEWIS. |
Norman R. Tilden, New Orleans, for plaintiff-appellant and respondent.
A. J. Marciante, New Orleans, for defendant-appellee and relator.
This suit for damages, which comes to us on a writ of certiorari granted to defendant, arises out of an automobile collision which occurred in the city of New Orleans on a rainy morning (November 10, 1950) at the intersection of North Broad and St. Philip Streets when a Studebaker automobile owned and operated by the defendant, Jack L. Lewis, was struck on its right rear door and fender by a Packard car owned and driven by one Louis M. Cherry of Meridian, Mississippi. As a result of the accident, defendant's car was damaged in the amount of $138.38 and Cherry's car sustained damage to its front portion, hood, radiator, etc., necessitating repairs costing $454.15.
Cherry carried a $50 deductible collision policy with the plaintiff, Calvert Fire Insurance Company, and the latter paid $404.15 of the total damage and took a conventional subrogation from Cherry for this amount. Thereafter, it instituted this suit against Lewis for reimbursement of the $404.15, claiming that the accident was entirely attributable to his negligence. Lewis answered denying generally the allegations of the petition and also filed a reconventional demand charging Cherry with certain specific acts of negligence and praying for judgment against him for the $138.38 damage sustained by the Studebaker car.
The point of impact between the two cars was the riverside roadway of North Broad Street at its intersection with St. Philip Street. North Broad Street is a paved dual highway running from Canal Street to Gentilly Road. It is separated by a neutral ground 25 feet in width and its two roadways are 35 feet wide. The lakeside roadway accommodates traffic proceeding towards Canal Street and the riverside roadway is devoted to traffic travelling towards Gentilly Road. The street is intersected at right angles by St. Philip Street which is a 35-foot one-way paved street running from Bayou St. John towards the Mississippi River.
At the time of the accident, Cherry was driving his Packard car on the riverside roadway of North Broad Street and Lewis was crossing over the intersection from the lake side of St. Philip Street to the river side and had reached and preempted the riverside roadway crossing when the right rear side of his car was struck by the front end of the Packard as it came into the intersection.
On the trial of the merits, only the participants testified as to the cause of the accident and the trial judge, finding both drivers guilty of negligence, rendered judgment dismissing the main demand and the demand in reconvention.1 Thereafter, plaintiff applied for a rehearing contending that, since defendant, who was found to be at fault, had failed to plead Cherry's contributory negligence as a special defense, there should have been judgment in favor of plaintiff.
The trial judge refused the rehearing. However, he granted a new trial, ex proprio motu, at which he permitted defendant to amend his pleadings by inserting in his reconventional demand, after the allegations of negligence, the words: 'that plaintiff was contributorily negligent'. No further pleadings or evidence being offered by either litigant on the new trial, the original judgment was reinstated.2
On plaintiff's appeal from this judgment, the Court of Appeal for the Parish of Orleans reversed the lower court as to the main demand and awarded plaintiff judgment for $404.15. The basis of the appellate court's opinion was that the defense of contributory negligence could not be considered since it had not been pleaded and, further, that it was improper for the trial judge to permit an amendment to pleadings injecting a new defense (contributory negligence) after the case had been fully tried on its merits. See 83 So.2d 139.
Before considering the correctness of the respective rulings anent the sufficiency of the pleadings to present the defense of contributory negligence, we must first determine whether plaintiff has established that defendant was guilty of negligence which was the proximate cause of the accident. This presents, of course, solely an issue of fact.
Plaintiff specifies in its petition that Lewis was guilty of negligence in failing to stop in obedience to a 'Stop' sign located at the entrance to the lakeside lane of North Broad Street; that he proceeded across the intersection at 30 miles per hour and that he also violated Section 10(b) of Article VI of the Traffic Ordinance of the City of New Orleans in failing to come to a full stop on the neutral ground of North Broad and St. Philip Streets and in not blowing his horn before entering the intersection.
The only evidence offered to substantiate these charges of defendant's fault was that of Cherry himself. The substance of his testimony is that he was travelling on North Broad Street, approximately 7 feet from the neutral ground curbing, at a speed of 20 to 25 miles per hour; that, as he was approaching the intersection of St. Philip Street, he noticed another automobile overtaking...
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