Day v. Campbell-Grosjean Roofing & Sheet Metal Corp.

• Decision Date: 13 December 1971
• Docket Number: No. 51029,CAMPBELL-GROSJEAN,51029
• Citation: 256 So.2d 105,260 La. 325
• Parties: Billy Jean Morgan DAY et al., Plaintiffs-Applicants, v.ROOFING AND SHEET METAL CORPORATION et al., Defendants-Respondents.
• Court: Louisiana Supreme Court

Page 105

256 So.2d 105

260 La. 325

Billy Jean Morgan DAY et al., Plaintiffs-Applicants, v. CAMPBELL-GROSJEAN ROOFING AND SHEET METAL CORPORATION et al., Defendants-Respondents.

No. 51029.

Supreme Court of Louisiana.

Dec. 13, 1971.

Rehearing Denied Jan. 17, 1972.

Gallagher & Gallagher, Andrew B. Gallagher, Shreveport, for plaintiffs-applicants.

Bodenheimer, Jones, Klotz & Simmons, G. M. Bodenheimer, Jr., Shreveport, for defendants-respondents.

TATE, Justice.

The late Wimberly Day was killed in a truck accident. Before us is the claim of his widow and one child, whose suit was dismissed by the court of appeal.

In this same suit, however, two children of the same decedent by his first marriage have, by final judgment of the same court, been awarded wrongful death benefits because of the negligence of the respondents' truckdriver. 241 So.2d 38 (La.App.2d Cir. 1970), certiorari denied, 256 La. 1142, 241 So.2d 250 (1970).

The claim by the present widow and child was dismissed by the court of appeal at its first hearing, due to failure of their counsel to brief or to appear. 241 So.2d 38. Upon rehearing, however, this same court of appeal no longer found the defendants' truckdriver negligent. Accordingly, it dismissed the claim upon its merits. 241 So.2d 38, 41 (on rehearing).

We granted certiorari, 257 La. 265, 242 So.2d 244 (1971), because we felt it to be anomalous that, in the same suit arising out of the same accident and under the identical allegations of negligence of the same defendant driver, one set of children of the decedent should recover, while the widow and another child should be denied recovery, upon identical facts.

I.

At the time we granted certiorari, we thought it possible that the court of appeal should have applied the 'law of the case' to prevent this anomalous result.

As the authorities to be cited show:

With regard to an appellate court, the 'law of the case' refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the same case. ¹ This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. ² Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.

Nevertheless, the law-of-the-case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice. ³ Further, the law-of-the-case principle is not applied so as to prevent a higher court from examining the correctness of the ruling of the previous court.

See: Louisiana State Bar Assn. v. Theard, 225 La. 98, 72 So.2d 310 (1954); City of Gretna v. Aetna Life Ins. Co., 207 La. 1085, 22 So.2d 658 (1945); Wall v. American Employers Ins. Co., 250 So.2d 172 (La.App.1st Cir. 1971); Keller v. Thompson, 134 So.2d 395 (La.App.3d Cir. 1961) (full discussion). See also Moore's Federal Practice, 0.404 (1965); Freeman on Judgments, Section 30 (5th Ed. 1925); Note, 62 Harv.L.Rev. 286 (1948); Note, 40 Col.L.Rev. 268 (1940); Lummus, 'The 'Law of the Case' in Massachusetts', 9 Boston U.L.Rev. 225 (1929); 5B C.J.S. Appeal and Error §§ 1821--1834, 1964; 21 C.J.S. Courts § 195; 5 Am.Jur.2d 'Appeal and Error', Sections 744--59.

The present court Did deny certiorari when defendants applied to review the award to the children of the first marriage by the court of appeal's first opinion. 256 La. 1142, 241 So.2d 250 (1970). This ruling does not, however, reflect a prior adjudication by us on the merits of the defendants' contentions, such as would constitute the 'law of the case' on the present review. The ruling was rather the application of the principle of discretionary certiorari review followed by this court, by which it will ordinarily not grant certiorari when only a question of fact is presented. Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969); Cofield v. Burgdorf, 238 La. 297, 115 So.2d 357 (1959); Robichaux v. Realty Operators, 195 La. 70, 196 So. 23 (1940). Cf. La.R.S. 13:4450. ⁴

Once this court has granted certiorari to review a decision of the court of appeal, the matter is before us for decision in the same manner as if it had been brought here by direct appeal. Article VII, Section 11, La.Const. We therefore find it more appropriate to decide the case before us on its merits, rather than to pass upon the now-abstract issue of whether the court of appeal should have applied the law-of-the-case principle under the present facts.

II.

The facts show that the decedent Day was riding as a passenger in a pick-up truck driven by one Hamous. He was killed when Hamous braked, in order to avoid striking the defendants' truck, and lost control of the pick-up and collided with a vehicle parked on the shoulder. The defendants' truck had pulled across the four-lane highway from the shoulder and was stopped across and completely obstructing the lane in which Hamous was approaching.

The chief issue is whether the defendants' truckdriver, Wright, was negligent in pulling from the shoulder onto a high-speed highway and stopping at the median cross-over, so as to block the entire lane in which the decedent's vehicle was approaching.

The legal principles applicable are not seriously disputed. The primary duty to avoid a collision rests upon the driver entering a through highway from a sideroad or the shoulder. However, he is not required to desist from entry so long as any traffic is in sight. He may proceed onto the main highway under circumstances when it would appear to a reasonably prudent person that his entry can be made in safety and without obstructing the passage of approaching traffic. See Zager v. Allstate Insurance Co., 211 So.2d 744 (La.App.3d Cir. 1968) and decisions summarized therein.

The site of the accident was at Salter's Truck Stop on Highway 190 in West Baton Rouge Parish. It happened just after dark in November. This four-lane main highway runs east-west.

At the immediate place of the accident, the speed limit was 60 mph. The general highway speed limit of the highway in the area was 70 mph. However, a flashing yellow light at an intersection 200--300 feet prior to the point of impact signalled traffic to slow (to 60 mph) in the immediate area of the accident, where there was a service station on each side of the highway.

The decedent Day was riding as a passenger in Hamous's pick-up truck. Immediately before the accident, Hamous was approaching on the inside (southern-most) lane of the two westbound (i.e., north) lanes of the highway.

The defendant truckdriver, Wright, had previously parked on the north shoulder. He decided to move his truck across the highway to a better parking area for the night. He was driving a large six-wheeled flatbed truck, 28 feet in length.

After observing for traffic (Wright testified), he pulled his truck across the highway and into a cross-over through the neutral ground, intending to make a U-turn into the parking area at Salter's Truck Stop on the far side of the south (eastbound) two lanes of the highway. However, he was unable to complete his crossing at the time, because (he testified) unexpectedly a vehicle entered the eastbound lanes of the highway from the south shoulder. The result of his stopping was that the rear of his large truck protruded across and entirely blocked the left lane of the high-speed highway, in which Hamous and the decedent were approaching.

No party any longer disputes that Hamous, the decedent's driver, was negligent in not further slackening his speed when he saw the long truck driven by Wright enter the highway from the shoulder to cross it. This negligence thus caused or contributed to the accident.

Nevertheless, the issue remains whether any negligence of Wright in obstructing the highway contributed to the accident.

On first hearing, after summarizing the facts, the court of appeal held, 241 So.2d 41: 'We hold that under the circumstances disclosed by this record, Ruble Wright's act of pulling out from a parking area, angling across a heavily traveled highway, and then attempting a left turn while driving an oversize vehicle which completely blocked, as the record shows, the entire inside lane of traffic constituted negligence. Hamous was confronted with an emergency contributed to by the negligent act of Wright and his own speed. It therefore follows that Wright, his employer and insurer are responsible for the resulting damages and fatal injuries suffered by Day.'

We think our brothers of the intermediate court were correct in so holding.

On the second hearing, the intermediate court adopted the trial court's reasoning that Wright had entered the highway sufficiently in advance of the pick-up truck so that his crossing it was not negligent. The court held that Wright could not be held responsible for blocking the highway because (according only to his own testimony) a vehicle entered the eastbound lanes from the south shoulder, which forced him to stop.

According to Wright, at the time he entered the highway only one vehicle was approaching from the east, i.e., Hamous's, and that was one-half mile away. As did the court of appeal on its first hearing, we doubt the accuracy of Wright's observation of the lack of on-coming traffic in the eastbound lanes and its distance from him. We also have some reservation as to his alleged inability to anticipate that traffic from the truck-stop parking area across the roadway would require him to stop before completing his crossing of the entire four-lane highway.

The independent eyewitness, Smith, witnessed the...