Chapman v. Travelers Indem. Co.
| Decision Date | 28 March 1950 |
| Docket Number | No. 3232,3232 |
| Citation | 45 So.2d 557 |
| Parties | CHAPMAN v. TRAVELERS INDEMNITY CO. et al. |
| Court | Court of Appeal of Louisiana — District of US |
Reid & Burch, Amite, for appellant.
Durrett & Hardin, Baton Rouge, for appellee.
This is a suit for personal injuries allegedly sustained by the plaintiff in a collision between a Chevrolet automobile driven by her husband, Thomas E. Chapman, in which she was riding as a guest, and a Ford automobile being driven by Mrs. Paul Nicolosi, which occurred on December 13, 1945, at about 4:30 P.M., on United States Highway No. 190, between Baton Rouge and Hammond, approximately three miles West of Hammond. The highway at the point of collision runs East and West, is concrete, eighteen feet wide, and straight and level, but at the time of the accident visibility was very poor since it was apparently drizzling at the time and had rained hard shortly before. The plaintiff's husband, accompanied by plaintiff, who was riding on the front seat to his right, was driving West, and Mrs. Nicolosi was driving east, and as she made a left turn to enter the driveway of her home, located on the north side of the highway, the right rear fender of the Chapman automobile struck the right rear fender of the Nicolosi automobile and then swerved towards the south lane of the highway and struck an oncoming truck. In the collision, Mrs. Chapman, the plaintiff, was thrown out of the car and into the ditch on the north side of the highway. She was rendered unconscious as a result of her injuries and was taken to the Wiginton Infirmary, in Hammond, for treatment. She filed suit against the Travelers Indemnity Company as insurer of her husband and also against Mrs. Nicolosi as driver of the Ford automobile and Mrs. Nicolosi's husband, on the allegation that she was on a family mission, demanding damages for personal injuries in the total sum of $21,000.
The petition in effect alleges that the accident was caused by the negligence of plaintiff's husband or the negligence of Mrs. Nicolosi or the concurrent negligence of both. In her petition she relies on the doctrine of res ipsa loquitur on the theory that how the accident occurred is within the knowledge of the respective drivers of the two cars and that it is incumbent upon each driver to prove freedom of negligence; otherwise, under the doctrine, if either should fail to establish freedom of negligence, he or she should be held guilty thereof and judgment granted accordingly to the plaintiff. In the alternative, she does allege negligence on the part of both her husband and Mrs. Nicolosi.
The defendant, Travelers Indemnity Company filed an exception of no cause and no right of action on the ground that since the law deprives her of any right of action against her husband that it should follow that she should have no right of action against her husband's insurer and that the jurisprudence to the contrary is incorrect. Judge Robert S. Ellis, Jr. overruled the exception, basing his decision on the Supreme Court decisions which grant a direct right to a wife against her husband's insurer.
The defense of Travelers Indemnity Company in its answer is to the effect that their assured was guilty of no negligence which contributed to the accident and that the sole proximate cause of the accident was the negligence of Mrs. Nicolosi in attempting to negotiate a left turn in the face of the oncoming Chapman car when she knew or should have known that she had insufficient time to complete her turn. This defendant, in the alternative, pleads that in the event their assured should be found guilty of any negligence contributing to the accident, then in that case, Mrs. Chapman should be found guilty of contributory negligence barring her recovery based on the theory that she in no manner made any protest about any of the alleged acts of negligence of her husband in spite of the fact that she was sitting by him on the front seat of the Chevrolet automobile and was in a position to observe his actions.
The defense of Mrs. Nicolosi is to the effect that the accident was caused solely by the negligence of Mr. Chapmen and that she was free of any negligence. She contends that she had already completed her left turn and was off the pavement when the Chapman car struck the rear of her car and that the only reason for the collision was that Chapman was driving at an excessive rate of speed and was not keeping a proper lookout and keeping his car under proper control; that she had given a left signal a considerable distance before making her turn, and that this signal was not heeded by Chapman.
Mr. Nicolosi makes the same defense as his wife, plus the additional defense that at the time of the collision she was not on any mission on behalf of the community, but was strictly on a personal mission.
After trial of the case, the trial court rendered judgment in favor of plaintiff, and against the defendant, The Travelers Indemnity Company, in the sum of $3,000.00, plus legal interest and costs. From the judgment, the defendant, The Travelers Indemnity Company, has perfected the present appeal and urges the same exception and defenses which it made in the lower court. The plaintiff has answered the appeal by praying that the judgment be increased from $3,000 to $10,000, or, in the alternative, that it be affirmed.
The judgment also dismissed the suit against the defendants, Mr. and Mrs. Nicolosi, and since the plaintiff has made no appeal from the judgment, in so far as these defendants are concerned, they are no longer involved as parties in the case on this appeal.
The only question before us on appeal is whether or not the judgment rendered by the trial court in favor of plaintiff against Travelers Indemnity Company in the sum of $3,000, with interest and costs, is correct, or if incorrect, whether it should be dismissed, or whether the judgment should be increased.
The first question to be considered is whether or not the exception was correctly overruled. On that question, the jurisprudence of this state supports the right of action of plaintiff against the insurer of her husband. The last decision of the Louisiana Supreme Court on that point is the case of LeBlanc v. New Amsterdam Casualty Co., 202 La. 857, 13 So.2d 245, 246, in which is stated:
In view of the jurisprudence we hold that the exception of no right or cause of action was correctly overruled.
On the merits we have the testimony of Mrs. Paul Nicolosi, of Mrs. Chapman, the plaintiff, and of Fred Ratliff, driver of a gas truck, who was following the Nicolosi automobile, and Mrs. Josephine Costanza.
Mrs. Nicolosi testifies that for about 300 feet or more before meeting the Chapman car she was driving very slowly with her left hand extended outside of her car and she further states that she was being followed by two trucks and that they were driving very slowly, it being apparent that they were awaiting a clearance of the west bound lane. She further states that when the Chapman car approaching the west bound lane came within approximately 50 feet of her car, she made a quick left turn directly into the path of the oncoming Chapman car and towards the private driveway of her home. She contends that her car was completely on the shoulder of and off of the highway and that it was struck on the right rear fender by the right rear fender of the Chapman car.
The testimony of the truck driver immediately to her rear, Mr. Fred Ratliff, corroborates Mrs. Nicolosi's testimony with reference to her maneuvers in driving slowly and having her hand extended outside the...
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