Chivers v. Couch Motor Lines, Inc.

• Decision Date: 15 January 1964
• Docket Number: No. 1018,1018
• Citation: 159 So.2d 544
• Parties: Juanita CHIVERS, Individually, etc., Plaintiff-Appellee, v. COUCH MOTOR LINES, INC. et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 544

159 So.2d 544

Juanita CHIVERS, Individually, etc., Plaintiff-Appellee, v. COUCH MOTOR LINES, INC. et al., Defendants-Appellants.

No. 1018.

Court of Appeal of Louisiana, Third Circuit.

Jan. 15, 1964.

Felix A. DeJean, Opelousas, now deceased, for defendants-appellants at the time of trial.

Lewis & Lewis, by Seth Lewis, Sr., Opelousas, for defendants-appellants on the appeal.

Sandoz & Sandoz, by Lawrence Sandoz, Jr., and Leslie Schiff, Opelousas, for plaintiff-appellee.

Before TATE, FRUGE and SAVOY, JJ.

TATE, Judge.

This is a wrongful death action. The defendants appeal from judgment awarding damages to the plaintiff.

On January 26, 1961, the decedent Chivers, a resident of Florida, was killed near Krotz Springs, Louisiana. He was struck by a truck-trailer owned and operated by Couch Motor Lines, Inc. The truck's driver and its insurer are joined with Couch as defendants.

The plaintiff brings this suit as the widow of a common-law marriage contracted with the decedent in the State of Florida. She sues to recover both for herself and also for the children of the union.

The principal issues of this appeal concern (1) the negligence of Couch's driver and (2) whether there was a valid common-law marriage between the plaintiff and the decedent Chivers.

1. Negligence.

The accident occurred shortly after midnight near the western end of the Atchafalaya River Bridge. It was cold at the time, and ice had formed on the roadway of the western incline of the long bridge.

The decedent Chivers was standing in front of a disabled vehicle and waving a flashlight to warn oncoming traffic. He was killed when the defendants' large freight-carrying truck skidded down the incline and crashed into the disabled vehicle.

Some five to ten minutes before the decedent Chivers was killed, a west-bound passenger vehicle driven by him had also skidded on the icy western incline. It turned completely around and lodged against the western railing, facing east in the westbound lane. This accident occurred at a time when Chivers was driving down the incline at a slow speed, but an attached U-Haul-It trailer swayed out and caused his vehicle to skid.

After this first accident, the Chivers vehicle could not be moved, due to the angle and position of the trailer, which protruded a foot or two into the other (the eastbound) lane of the bridge roadway. Chivers and several others at the scene had first attempted unsuccessfully to straighten out the trailer.

Chivers then took out a flashlight and stationed himself some fifty feet or so in advance of the disabled vehicle, to warn oncoming traffic of the hazard. The parking lights and the inside dome light of his vehicle were also lit. Before the present accident, Chivers had thus guided one or two slow-moving westbound vehicles past his.

The trial court summarized the evidence concerning the defendant driver's negligence as follows:

'The evidence discloses that from the crest of the bridge to the western end of the bridge there is a distance of 665 feet and that the (Chivers's) station wagon was stalled some 60 feet from the western end of the bridge. There is no evidence that Chivers was guilty of any carelessness in driving the station wagon. The driver of the truck admitted to the state trooper that he was travelling approximately 40 miles an hour and that he first noticed the stalled vehicle some 250 feet from the point of impact. There were signs placed by the employees of the State Department of Highways warning drivers that there was ice on the bridge. The driver of the truck admitted that he saw the signs. From the truck driver's testimony it appears that he saw the stalled vehicle considerably more than 250 feet from the point of impact'. admitted that he saw the disabled vehicle, admitted that he saw the sidabled vehicle, as well as three or four persons near it, as soon as he passed the crest of the bridge, some 600 feet distant from it.

The trial court correctly concluded that, under the circumstances shown, the sole proximate cause of the accident was the excessive speed of the driver of the Couch truck:

If the truck had not been operated at a speed excessive in view of the icy condition of the downward incline, the driver, upon observing the disabled vehicle some 600 feet ahead, had ample time either to stop and avoid the accident or else to veer slowly into the left lane, instead of losing control of his vehicle. The excessive speed contributed to the driver's losing control of his vehicle when he applied his brakes; his negligent speed is thus a proximate cause of the accident. Barret v. Caddo Transfer & Warehouse Co., Inc., 165 La. 1075, 1076, 116 So. 563, 58 A.L.R. 261; Schaubhut v. Liberty Mut. Ins. Co., La.App. 3 Cir., 157 So.2d 346, 347; Wright v. Home Indemnity Co., La.App. 2 Cir., 153 So.2d 213.

Further, considering that the decedent Chivers was making reasonable efforts to warn oncoming traffic of the obstruction caused by his disabled vehicle and that there was not time nor opportunity to remove it from the roadway before the present accident, the decedent was free of fault constituting a proximate contributory cause of the accident. Washington Fire & Marine Ins. Co. v. Canal Ins. Co., La.App. 1 Cir., 110 So.2d 231; Mouton v. Pacific Indemnity Co., La.App. 1 Cir., 102 So.2d 563; White v. State Farm Mut. Auto. Ins. Co., La.App. 1 Cir., 66 So.2d 391. The present facts are thus distinguished, as well as for other reasons, from those in the decision relied upon by appellants, Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298, where the driver of the disabled vehicle was negligent because he made no attempt to warn oncoming traffic of the obstruction to traffic created by his vehicle.

2. The Plaintiff's Status as Surviving Wife of a Common-Law Marriage Contracted in Florida.

In Louisiana, the right to recover damages for wrongful death is created by statute, namely, LSA-Civil Code Article 2315. This right is granted to or survives in favor of statutorily-designated classes of beneficiaries only. Jackson v. Lindlom, La.App.Orl., 84 So.2d 101, certiorari denied (discusses jurisprudence); cf. also: Board of Commissioners of Port of New Orleans v. City of New Orleans, 223 La. 199, 65 So.2d 313; Manuel v. Carolina Cas. Ins. Co., La.App. 3 Cir., 136 So.2d 275.

The statutorily designated survivors with beneficiary rights include the widow and children of the decedent. LSA-C.C. Art. 2315. Not being expressly included, a bigamous wife or illegitimate children are not included within the statutory beneficiaries. Jackson v. Lindlom, cited above.

However, although common-law marriages contracted in Louisiana are not recognized as valid by the laws of our State, the Louisiana wrongful death statute Does grant a remedy to the widow and children of a common-law marriage contracted in another state and recognized as valid therein. Gibbs v. Illinois Cent. R. Co., 169 La. 450, 125 So. 445. In such instance, the survivors are recognized as the legal spouse and legitimate children of the decedent, if the common-law marriage is valid under the laws of the state where contracted. Gibbs v. Illinois Central R. Co., cited above. See also: Brinson v. Brinson, 233 La. 417, 96 So.2d 653 (which notes a Louisiana public policy exception when the union is contracted in bad faith); Succession of Marinoni, 177 La. 592, 148 So. 888.

The defendants' able counsel strenuously insists, with citation of Florida decisions, that the union between the plaintiff and the decedent was in fact not a valid common-law marriage under the laws of Florida, where the union was contracted.

Nevertheless, we experience relatively little difficulty in agreeing with the trial court that the plaintiff is the surviving spouse, and her children the legitimate issue, of a valid common-law marriage contracted with the decedent in Florida, where the spouses lived together openly as man and wife for more than seven years.

We deem it advisable to discuss common-law marriages at greater length than is required by decision of the narrow issues as to the question before us, however, since to understand the issues raised it is necessary to set them in context of the general law concerning the question.

In the first place, as stated at 55 C.J.S. Marriage § 6, pp. 816--819:

'A common-law marriage may be briefly described as a marriage without formal solemnization, or without formalities. * * * Where recognized, common-law marriages are as fully valid as ceremonial marriages * * *. (A) common-law marriage need not be solemnized; all that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation * * * between parties capable in law of making such a contract * * * consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. * * *'

As we know, '* * * a common-law marriage cannot be contracted by virtue of the law of Louisiana. A so-called common-law marriage, entered into in Louisiana, is recognized merely as a state of concubinage.' Succession of Marinoni, cited above, at 148 So. 894.

The parties to this suit concede that common-law marriages are, however, recognized in Florida.

With especial reference to the law of that State, "To constitute a common-law marriage, at least two essentials must appear, mutual consent and capacity of the parties, and the agreement itself must be to become husband and wife immediately from the time when the mutual consent is given, which is known as words of present assent per verba de praesenti." Garcia v. Exchange Nat. Bank of Tampa, 123 Fla. 726, 167 So. 518, 520 (1930). "To constitute marriage de verba de praesenti, the parties must be in the presence of each other when the agreement is entered into but it need not be made in the presence of a witness * * *. The parties may express the agreement by parol; they may signify...