Defiore v. Zar

• Court: Court of Appeal of Louisiana
• Writing for the Court: JANVIER
• Citation: Defiore v. Zar, 106 So.2d 126 (La. App. 1958)
• Decision Date: 03 November 1958
• Docket Number: No. 21064,21064
• Parties: Nicholas DEFIORE et al. v. Orleans ZAR et al.

Page 126

106 So.2d 126

Nicholas DEFIORE et al. v. Orleans ZAR et al.

No. 21064.

Court of Appeal of Louisiana, Orleans.

Nov. 3, 1958.

Reuter & Reuter, Patrick M. Schott, New Orleans, for plaintiffs-appellants.

George B. Richard, Gretna, for defendants-appellees.

JANVIER, Judge.

About seven o'clock on the night of February 15, 1954, and 1952 Oldsmobile automobile of plaintiff, Nicholas Defiore was run into by another car owned by Steve Zar, Jr., and operated by Andrew Orleans Zar. Considerable damage resulted to the car of plaintiff. He had secured collision insurance from Motors Insurance Corporation and under that policy he himself was required to pay $50 of such amount as may be required to make repairs resulting from collision. Accordingly, he paid $50 and his insurer paid $598.80 to Paretti Pontiac Company. Motors Insurance Corporation and Defiore then jointly brought this suit against both Steve Zar, Jr., and Andrew Orleans Zar, alleging that the accident had been caused by negligence of the latter and that, accordingly, both were liable. In the original petition the name of the operator of the Zar car was incorrectly given as Olean Zar but this was corrected by supplemental petition.

Steve Zar denied liability, averring that the car at the time was being used by Andrew Zar without his knowledge, and the said Andrew Zar denied liability, averring that he had not been in any way at fault, that the accident had been caused by the negligence of Mrs. Defiore and that Mrs. Defiore did not avail herself of the opportunity to avoid the accident; in other words, that she had the last clear chance.

After trial on the merits, there was judgment dismissing the suit against Steve Zar, Jr., and dismissing it as in case of nonsuit as against Andrew Orleans Zar. Both plaintiffs have appealed.

When the matter was argued before us, it was conceded that, as against Steve Zar, Jr., the suit was properly dismissed. It was also conceded on behalf of Andrew Orleans Zar that the accident had been caused solely by his negligence and that the only question which remained was whether the judgment of nonsuit was correct.

The contention of plaintiffs is that they properly proved the amount of the damage and the contention of the defendants is that they did not offer proper proof.

In his reasons for judgment, the District Judge said that the cost of the repairs had not been properly shown and it was for this reason that he dismissed the suit as in case of nonsuit.

There is no doubt that it was shown that Defiore paid $50 and Motors Insurance Corporation paid $598.80 to the Paretti Pontiac Company. However, there was no proper evidence which in any way resembled a detailed statement as to the damages to the Defiore car.

Mr. Defiore did not testify. Mrs. Defiore stated that before the accident the car had been in perfect condition, and she identified certain documents; the $50 check which had been paid to Paretti Pontiac Company by her husband, the other check which had been paid to Paretti Pontiac Company by Motors Insurance Corporation, and an estimate of the damages and the cost of repairs which it is said was made by a man whose name was Overstreet and who had been employed by Motors Insurance Corporation for the purpose of making appraisements of damages, but who no longer was with the said insurance company and who did not testify.

No other witness testified except Edward F. Schellhaas, Jr., supervisor of Motors Insurance Corporation, who produced the document referred to which he called the company's 'repair and replacement order.' It is true that this repair and replacement order, if admissible, would show the details of the damage and the exact amount which was paid by Defiore and Motors Insurance Corporation to Paretti Pontiac Company, but, except for the testimony of Mr. Schellhaas that this document was in the records of his office, there is no evidence connecting it with the damage and there was no witness who testified that the items shown on that repair and replacement order evidenced the details of the damage to the Defiore car.

Just how much proof should be required to substantiate a claim for damages to personal property has for many years given us considerable difficulty. Nearly thirty years ago, in...