Davis v. Lewis and Lewis

• Decision Date: 26 April 1954
• Docket Number: No. 3797,3797
• Citation: Davis v. Lewis and Lewis, 72 So.2d 612 (La. App. 1954)
• Court: Court of Appeal of Louisiana
• Parties: DAVIS v. LEWIS & LEWIS et al.

Page 612

72 So.2d 612

DAVIS v.LEWIS & LEWIS et al.

No. 3797.

Court of Appeal of Louisiana, First Circuit.

April 26, 1954.

Rehearing Denied May 31, 1954.

Writ of Certiorari Granted July 2, 1954.

Theus, Grisham, Davis & Leigh, Monroe, for appellants.

Anders & Anders, Winnsboro, for appellee.

LOTTINGER, Judge.

This is a suit for damages resulting from an automobile accident between a car driven by petitioner and a truck driven by Willie Wright, an alleged agent of defendants.The lower court gave judgment in favor of petitioner and awarded damages in the sum of $10,000.The defendants have taken this appeal.

The accident in question occurred on January 1, 1948, in the Parish of West Feliciana, Louisiana.The original petition was filed on December 29, 1948, and prays for judgment in solido against John T. Lewis and Howard E. Lewis, the alleged partners who owned the truck, and H. P. Durrett, agent and adjuster, who was the insurance carrier of the Lewis'.Service was made on the Lewis' on January 7, 1949, and on Durrett on January 10, 1949.On January 29, 1949, petitioner filed a supplemental and amended petition alleging that the defendant partnership was actually composed of John G. Lewis and Pearl Lewis, instead of the parties as alleged in his original petition.In the amended petition, petitioner further alleged that Globe Indemnity Company was the insurance company for which Durrett was the adjuster.The prayer of the amended petition was for judgment against John G. Lewis, Pearl Lewis, H. P. Durrett, agent and adjuster, and Globe Indemnity Company, but did not ask for judgment against the firm of Lewis & Lewis.

Certain exceptions were filed by the defendants which were decided by this court in its prior judgment reported in 60 So.2d 230.In our said opinion we sustained the judgment of the lower court on all of the exceptions which had been filed, except a plea of prescription of one year filed on behalf of Globe Indemnity Company.The lower court had dismissed the petitioner's suit as to all defendants.

After we had overruled the plea of prescription and had remanded the case to the lower court for trial on the merits, both petitioner and defendants applied to the Supreme Court for writ of certiorari.Plaintiff's application for a writ was denied because the court found no error of law, and defendant's application was denied because the judgment was not final.Trial on the merits was subsequently held in the lower court, which gave judgment for petitioner in the sum of $10,000.The defendant has taken this appeal.

There are but two questions now before this court which have not been previously decreed by final judgment.Those two questions are: first, whether the plea of prescription should have been maintained, and second, whether the driver of the defendant vehicle was guilty of negligence so as to allow recovery by the petitioner.All other questions were finally decided when the Supreme Court refused petitioner's application for certiorari.

Insofar as this court is concerned the plea of prescription filed by defendant, Globe Indemnity Company, is res adjudicata.The question was before this court previously, and was disposed of by this court in its opinion reported in 60 So.2d 230.

Defendant takes the position that since the Supreme Court made the statement in refusing defendant's application for a writ of certiorari, the judgment on the plea of prescription was not final and the question is still open here.It is our opinion that our judgment rendered in this case on the plea of prescription holding that the prescription was interrupted and that the defendant was legally cited and made a party to this suit by the first amended petition of the petitioner, insofar as this court is concerned, is res adjudicata and is not now subject to further inquiry.Folse v. Police July, 128 La. 1080, 55 So. 681;State v. Svoboda, 221 La. 893, 60 So.2d 715;In re Quaker RealtyCo., 7OrleansApp. 364;Wright v. Louisiana Ice and Utilities Co., 19 La.App. 173, 138 So. 450;Rome v. London & Lancashire Indemnity Co. of America, La.App., 169 So. 132;Thornton v. Beeson, La.App., 149 So. 117.

It is our opinion that when an issue in a case is decided by this court, and our decision on such issue has not been reversed by the Supreme Court, that our ruling on that particular issue, insofar as this court is concerned, is the law of the case.If any relief is to be accorded the appellant under our ruling in overruling the plea of prescription, that relief will have to come from the Supreme Court, because if we could entertain such an action at this time, it would be granting another hearing on a matter which we have previously decided and which, insofar as we are concerned, is res adjudicata.

The lower court rendered written reasons for its judgment.Its findings of fact, as found in the said reasons, are as follows:

'Coming back to the merits and what should be determined to be the facts in the case, the issue is clouded by a wide divergence in the testimony of the several witnesses concerning what happened.According to the plaintiff's testimony and that of the three other people who were in the car with him when the collision occurred, he was on his way from Winnsboro to Jackson, La.At a point about one half mile south of the Mississippi-Louisiana line they observed a pulp wood truck approaching them around a curve in the road traveling north and on the wrong side of the highway.The plaintiff testified that this truck was some three hundred steps distant when he first observed it.As it continued towards him and still on the wrong side of the road making no apparent effort to pull over on its proper lane, he sounded his horn to attranct the attention of the pulp wood truck driver who according to plaintiff was paying no attention to his approaching automobile.That when he sounded his horn the truck driver attempted to pull over to his proper side of the road but failed to get the trailer part of his truck clear with the consequence that plaintiff's automobile was struck by the trailer with the result of causing severe and possibly permanent injuries to plaintiff.The testimony of the witnesses for the defendant tends to the conclusion that entire responsibility for the accident is attributable to plaintiff.In one particular only is the testimony of plaintiff and that of the truck driver in agreement.The plaintiff testified that he was as far over in his proper lane of travel as he could get.The truck driver likewise testified that plaintiff was on his proper side of the road, that he himself was on his proper side of the road and no collision would have occurred had not plaintiff in attempting to pull further over became involved in loose gravel which swung him back to the left causing the automobile to strike the bumper and left side of the front of the pulp wood truck.It seems that besides the driver of the truck there were two other people occupying the cab.It further appears that one of these people was asleep and only awakened when the truck and the automobile were approximately fifty feet apart.It might be said at this time that the details of the position of the wheels of the respective motor vehicles and other minute details of what happened, cast serious doubt on this witness' testimony.He saw too much in too short a time when suddenly aroused from sleep, for his testimony to be creditable.

'It seems to me that the nub of the whole question lies in the verity of one particular portion of the testimony given by the plaintiff, and that is, did the plaintiff sound his horn.If his testimony is true as to this fact then it becomes immediately apparent that the driver of the truck and his passenger, Nelson Campbell, were paying no attention to the road ahead of them and the approaching car.It is my belief, based upon all the testimony offered, that the driver, Willie Wright, did not know which side of the road plaintiff's car was on for the simple fact that he was paying no attention to the road ahead of him and that he resorts to the suggestion that plaintiff in attempting to get further to his right got his wheels in loose gravel and this caused his car to swerve to the left and strike the approaching truck.

'It appears that the truck had just rounded a curve where the outside,--that is to say his proper lane of travel going north, was banked so as to be somewhat higher than the inside lane which was the proper lane for a car going south, as it was the right hand side of the road.This physical fact lends credence to plaintiff's testimony that he was on his proper side of the road as he approached the truck.There appears no earthly reason why he should have been anywhere else.On the other hand, the courts have recognized the tendency of motor vehicles, whose proper lane would be on the outside of a curve, to cut the curve and take the inside especially if traveling at any considerable speed and heavily loaded, as the pulp wood truck appears to have been.

'Considering that creditability of witnesses is a determining factor in any case where there is a sharp conflict in the testimony about what happened, having heard these witnesses, I was impressed by that given by the plaintiff concerning the salient facts preceding the accident.If he told the truth, and it is my belief that he did, then the truck driver was negligent in not watching the road ahead of him and failing, considering the nature of the road, to have his truck under proper control.

'The defendant alternatively pleads contributory negligence on the part of plaintiff, averring when he perceived his peril he should have come to a stop.Had he done so, this might or might not have avoided the collision.It might possibly have made matters worse.In any event he was confronted with an emergency not of his own making and with little time to weigh the probabilities.He was warranted in believing that the truck driver would do...