Foster v. Fidelity Mut. Ins. Co.
| Decision Date | 01 February 1960 |
| Docket Number | No. 4934,4934 |
| Citation | 118 So.2d 139 |
| Parties | Dennis C. FOSTER et ux. v. FIDELITY MUTUAL INSURANCE COMPANY et al. |
| Court | Court of Appeal of Louisiana — District of US |
Wood & Jackson, Leesville, for appellant.
Stafford & Pitts, Alexandria, for appellee.
Before ELLIS, LOTTINGER and TATE, JJ.
This is a tort action brought by Dennis C. Foster and Lena Eaves Foster, husband and wife, wherein the former seeks to recover for medical expenses and the latter seeks to recover for personal injuries received as the result of an incident which occurred on May 24, 1958 when Mrs. Foster was riding in an automobile driven by her son, Lawson O. Foster. Joined as defendants are Fidelity Mutual Insurance Company, the liability insurer of the owner of the car in which the parties were riding and Jasper D. Owers, the driver of the other automobile which was involved.
The petition recites that on the aforesaid day between 12:00 o'clock noon and 1:00 o'clock P.M. Mrs. Foster was a guest passenger of Lawson O. Foster and that they were proceeding in a 1956 automobile in a northerly direction on U.S. Highway No. 171 about ten miles north of Leesville in Vernon Parish. Just previously, Jasper D. Owers had been proceeding on the same highway in a southerly direction but, in an attempt to turn around, had turned to his left, or to the east side of the road. As Foster approached, Owers was in a stopped position in the east traffic lane and on the east shoulder but, as Foster came closer, he commenced backing into the center of the road, causing Foster to leave the road to his left coming to a stop in a ditch on the west side. Joint and concurrent negligence is charged against both drivers, it being alleged that Foster was driving at an excessive rate, failed to have his vehicle under control, failed to have kept a proper look-out and to have been what he should have seen and failed to slow down or stop upon seeing the Owers vehicle. Owers is alleged to have been negligent in not having his vehicle under control, in not keeping a proper look-out and seeing what he should have seen, in failing to accord Foster the right of way and by turning as he did.
No pleadings were filed by Owers. The answer of Fidelity is in the nature of a general denial with the alternative defense (which appears to have been dropped) that Foster was acting as the agent of his mother and, if negligent, such negligence would be attributable to her. By way of amended answer Fidelity charged that the omnibus insured, Lawson O. Foster, had colluded with his mother to assist her in her claim, thus violating the policy and rendering it void.
Judgment was rendered in the court below against Owers on confirmation of default. The trial judge held that Foster was free from negligence, thus dismissing the demands against Fidelity. The plaintiffs have appealed.
The following facts are not in dispute: At the situs of the incident U.S. Highway No. 171 runs north and south. It is a hard surfaced highway and, at that point, straight and level. At the time the weather was clear and the road dry. There were four witnesses to what took place, namely Owers, who was alone and who had been proceeding south in a Ford automobile and Foster and his mother who together with one Douglas Skinner, had been proceeding north in the Chevrolet automobile. There was, apparently, no physical evidence of any nature and no official investigation of the accident was made. Mrs. Foster was injured as the result of the sudden maneuver made by her son (which will be discussed later). The vehicles did not collide and each was on its way shortly afterward.
There can be no doubt as to the negligence on the part of Owers. He had been proceeding south and, upon hearing a noise and thinking that he had lost a hub-cap, decided to turn around and go to look for it. In order to effect the turn, he simply turned to his left, crossed the east lane and came to a stop with his front wheels in the ditch on that side of the road, looked both ways and then backed out. Though the closest curve to the south was 150 yards away he never saw the Foster vehicle until it was passing him. The rear of his car was midway of the east lane and when he heard the screeching of Foster's tires he went forward to avoid being hit. His conduct in attempting such a dangerous maneuver constitutes a gross kind of negligence which was a contributing cause of the accident.
Next presented for consideration is the question of whether Foster was negligent and, if so, whether such negligence contributed to the accident.
The witness Skinner, who was riding with Foster and his mother, stated that they were 50 of 100 yards away from the Owers car when it began backing into the road. Foster did not slow down but turned to the left, went along on the west shoulder and then turned back sharply to his right coming to a 'pretty sudden' stop. The reason for the sharp turn back to the right was because of an on-coming van in the south-bound lane. He estimated Foster's speed between 40 and 50 mph. In response to questioning by the Court this witness testified that the Owers car was at a standstill off the road when he first saw it at a distance of about 75 yards, but that they were only 30 or 40 yards from it when he first saw it backing up onto the road.
Mrs. Lena Foster, one of the plaintiffs, stated that she first saw the Owers car when they were about 75 yards distant, at which time it was stopped partly in the ditch and party on the shoulder. Shortly after, she saw it start to back onto the road, at which time her son continued at the same rate of speed. As the Owers car continued onto the road her son 'speeded up' and 'took to the shoulder' in order to get around it. On cross examination she estimated that they were 50 yards from Owers when he first started to back up. The following portion of her testimony is, we think, pertinent:
'Q. Now, Mrs. Foster, after this Owers car came out onto the highway, did your son do everything he possibly could to avoid the accident? A. Well, no sir, I don't think he did.
'Q. Now, Mrs. Foster, going back to the time I took your deposition, the other day, did I not ask you this question: 'And Mrs. Foster you feel like, under the circumstances, your son did about the only thing he could do to avoid hitting the car?' and you answered: 'Yes sir, I do.' Now, isn't that correct? A. Well, that was all that was left to do, or kill us all or go to the ditch.
Lawson P. Foster was called twice, once on cross-examination by counsel for plaintiffs, and the other time on cross-examination by counsel for defendants. When he was first called he stated that he saw the Owers car for the first time when he was about 150 to 200 yards away, at which time the car was at a standstill in the ditch. He estimated his speed between 50 and 60 miles per hour. When he first saw Owers backing onto the road he slowed down a bit and then, as Owers continued onto the road, he speeded up some and turned to his left onto the shoulder. He testified that he saw a van and one or two other cars behind it but that they had nothing to do with the accident as 'it was all over with before they got up there'.
When examined the second time Foster said that there was nothing to indicate Owers would back out and that he thought he saw him approaching. He estimated that he was only some 40 or 50 yards away when Owers commenced backing. The approaching van passed, he testified this time, as he was on the shoulder to his left.
With the above referred testimony before him the trial judge reached the following conclusions:
'In considering the effect of the testimony given by L. O. Foster, the son, sight should not be lost of the very natural and human impulse he had to assist his mother and father to recover. The Court gained the distinct impression listening to his testimony, that he was torn between that impulse and the natural dislike, that all men have, that is reluctance to admit that they were wrong, that is, that he was negligent. These contrary impulses, in my opinion, account for the fact that he was inclined to slightly change his testimony on material points.
'I am of the opinion that a fair attempt to reconcile all of the testimony leads to the conclusion that these are the facts:
'The Owers car was off the road, stopped, with its rear toward the pavement, when it came...
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