Constantin v. Bankers Fire & Marine Ins. Co.

• Decision Date: 17 April 1961
• Docket Number: No. 240,240
• Citation: Constantin v. Bankers Fire & Marine Ins. Co., 129 So.2d 269 (La. App. 1961)
• Parties: Wilson CONSTANTIN et al., Plaintiffs-Appellees, v. BANKERS FIRE AND MARINE INSURANCE COMPANY et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 269

129 So.2d 269

Wilson CONSTANTIN et al., Plaintiffs-Appellees, v.BANKERS FIRE AND MARINE INSURANCE COMPANY et al Defendants-Appellants.

No. 240.

Court of Appeal of Louisiana, Third Circuit.

April 17, 1961.

Rehearing Denied May 9, 1961.

Pugh, Buatt & Pugh, by Lawrence G. Pugh, Jr., Crowley, for defendants-appellants.

Edwards & Edwards, by Edwin W. Edwards, Crowley, for plaintiffs-appellees.

Before TATE, FRUGE and CULPEPPER, JJ.

FRUGE , Judge.

This is an action instituted by Mrs. Wilson Constantin for physical injuries which she received in an accident which occurred on March 24, 1960, in the City of Crowley, Louisiana.Her husband joins her in the suit seeking the medical expenses incurred for the treatment of his wife as a result of the accident.Judgment was rendered in favor of plaintiff, Mrs. Constantin, in the sum of $2,000 and in favor of Wilson Constantin, her husband, in the sum of $1,411.50.From this judgment, the defendants have appealed.

The facts reveal that on March 24, 1960, Mrs. Dubois, wife of Adrien Dubois, was learning to drive the Dubois family automobile.She had driven the vehicle on two or three occasions before said date.She desired to secure more practice in order to acquire the necessary experience to obtain a driver's license.Mrs. Wilson Constantin was apparently a good friend of Mrs. Dubois and it was agreed on the date of the accident that Mrs. Constantin would ride with Mrs. Dubois so that she could better learn to operate the automobile.Mrs. Constantin met Mrs. Dubois at her residence and Mrs. Constantin backed the automobile from the garage onto the road and assumed the position on the right hand side of the vehicle.Mrs. Dubois took the wheel and almost immediately and without warning started the automobile, accelerated the gas, and immediately drove it into the ditch and into a culvert throwing Mrs. Constantin against the mirror and, as a result thereof, she received bruises to her hip, arm and injuries to her neck.This suit was instituted by Mr. and Mrs. Constantin against Adrien Dubois, his wife, and his liability insurer, Banker's Fire and Marine Insurance Company.

The facts clearly show that the accident and resulting injuries resulted from the negligent operation of the Dubois vehicle by Mrs. Dubois.

The defendants contend that Mrs. Constantin is barred from recovery because she is guilty of contributory negligence and, alternatively, a second special defense of assumption of risk is raised by the defendants.

We believe as the trial judge did, that Mrs. Constantin cannot be found guilty of contributory negligence.She neither had the time nor the opportunity to do anything at all to prevent the occurrence of the accident.She was sitting in the right hand front seat, expecting the vehicle to go forward in a normal manner and, without warning, it was accelerated and driven abruptly into the ditch in a split second.The defense argues that Mrs. Constantin assumed the obligation to use such care as to prevent the happening of an accident and, accordingly, since she knew that Mrs. Dubois did not know how to drive too well, that she breached a legal duty.However, we can not follow this reasoning for certainly Mrs. Constantin, or any other reasonable person for that matter, could assume that even though a person did not know how to drive, she certainly would not go forward upon the road and immediately run into the ditch.We believe that the testimony reveals that Mrs. Constantin, while she knew that Mrs. Dubois did not have a driver's license, and while she knew that Mrs. Dubois had only driven the vehicle several times, thought that Mrs. Dubois could properly handle the vehicle in keeping it in the roadway.In this respect, Mrs. Constantin testified partially as follows at page 21:

'Q.Do you know whether or not Mrs. Dubois has ever been licensed to operate a motor vehicle?A.No, sir, I don't.

'Q.Do you know whether she can drive a car?A.I was told she could.

'Q.By whom?A.By her, her husband.

'Q.Your husband testified that Mrs. Dubois called him or you and said that she would like for you to accompany her in her car because she did not have enough experience.A.She did.

'Q.Would you consider her a careful driver?A.Sir, I had never ridden with her before.

'Q.How long did the Dubois own a car?A.That I don't know.

'Q.Youcan't testify to that?A.I can't testify how long they have owned it, no, sir.

'Q.Did you ever ride in a car with Mrs. Dubois before this accident happened?A.No, sir, I did not.'

She testified further as follows on page 25 of the transcript.

'Q.Youmean to say that knowing this lady as long as you did, knowing that you had never seen her drive an automobile, your testimony is that you didn't know whether she was a safe driver or not?A.Sir, I don't know if she was a safe driver or not, that is something I don't know.I had never been in a car with her before; I had never seen her drive.'

Further testify to her belief that Mrs. Dubois could handle the vehicle otherwise she would not have embarked in the car with her, Mrs. Constantin testified as follows on page 26:

'Q.When you got in the car with Mrs. Dubois did you think she could drive the car?A.Yes, sir, Mr. Dubois had said she could.

'Q.Did you expect that she was going to run the car in the ditch?A.No sir; I wouldn't have got in the car if I would have thought that.

'Q.Was it your opinion that she was going to be able to drive the car to the grocery store?A.Yes, sir, it was.

'Q.Did you get in the car for the purpose of driving it for her?A.No, sir, I didn't.'

In support of this feeling on the part of Mrs. Constantin that her driver could handle the vehicle, we have the testimony of Mrs. Dubois, herself, who testified that she had previously driven the car with her son and grandson; that she had driven the car around the block and that she had told Mrs. Constantin of her success in handling the vehicle on those occasions.Notice her testimony in that regard beginning on page 36 of the transcript:

'Q.Did you tell Mrs. Constantin that you had been driving with your son and your grandon?A.Yes, she knew.

'Q.She knew about that?A.Yes.

'Q.In other words, she knew you had been driving the car.A.Yes.'

Mr. Dubois substantiated this by testifying as follows on page 41.

'Q.Did she know that your wife didn't know how to drive?A.My wife had told her that she had the boys to teach her take a few rounds around the block.'

Mr. and Mrs. Constantin both testified emphatically that Mr. Dubois had told them the Mrs. Dubois knew how to drive and not to worry.When asked on examination about this, Mr. Dubois did not deny such a statement but merely stated 'I don't remember that'.See his testimony on page 42:

'Q.Did you tell Mr. Constantin at that time.'Don't worry, my wife knows how to drive'?A.I don't remember that.'

Since both the plaintiffs testified emphatically that such a statement was made and the defendant, Dubois, would not deny it but merely stated he did not remember making the statement, the court should accept the positive, direct, forthright testimony of Mr. and Mrs. Constantin on that point since it is not denied by Mr. Dubois.Positive testimony will outweigh negative testimony and here there is not even a denial of the fact.

Further evidence of Mrs. Dubois' apparent ability to handle the vehicle normally is stated by Mr. Dubois on cross-examination on page 44 of the transcript.

'Q.How soon after you got the Dodge did he start teaching her to drive?A.I couldn't tell * * * a few months afterwards.

'Q.And where did they go when he was teaching her to drive?A.Around the block.

'Q.How many times?A.Three or four times I presume.

'Q.And on that day did everything go good?She drove the car well?A.Yes.

'Q.And about how long after it was after Leewood had taught her that she would drive with Robert?A.I don't know.

'Q.Was it a month?A.About a month.

'Q.If everything went good the first time and she was learning pretty good and she wanted to drive, why did she not go back and drive with Leewood?A.I don't know.'

Leewood Dubois, the son of the defendants, testified that his mother had previously driven the vehicle and had done a fair job driving the vehicle and his testimony on that point is shown as follows on page 54 of the transcript.

'Q.The times you and your mother were together in the car, did she keep the car on the road?A.That's right.

'Q.She did what you considered a pretty good job of driving?A.I mean a fair job.

'Q.Youall got along pretty good together?A.That's right.'

The doctrine of assumption of risk is a special defense and must be specially pled and the burden of establishing such an assumption of risk rests upon the party who alleges it.SeeWhite v. State Farm Mutual Automobile Insurance Company, 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338;Upshaw v. Great American Indemnity Company, La.App., 112 So.2d 125.

In 61 C.J.S.Motor Vehicles§ 486, page 95, the rule is stated as follows:

'There are three elements of the doctrine of assumption of risk:

'(1) A hazard or danger inconsistent with the safety of the occupant.

'(2) Knowledge or appreciation of the hazard by the occupant.

'(3) Acquiescence or a willingness to proceed in the face of danger.'

An examination of the three elements necessary for the application of assumption of risk clearly shows that only the first element might have been present in this case.Mrs. Constantin knew that Mrs. Dubois did not have a driver's license.However, from the evidence adduced at the trial, we do not believe that Mrs. Constantin actually had or appreciated the hazard that she was placing herself in.We are of the opinion that she did not acquiesce to proceed in the face of danger.Immediately upon sitting at the right-hand side of the front seat and before she actually knew of the hazard, Mrs. Dubois ran the automobile in a ditch.Mrs. Constantin had...