Gaspard v. LeMaire
| Citation | 158 So.2d 149,245 La. 239 |
| Decision Date | 04 June 1963 |
| Docket Number | 46516,Nos. 46511,s. 46511 |
| Parties | Aline GASPARD v. Bradley C. LeMAIRE et al. |
| Court | Supreme Court of Louisiana |
Simon & Trice, Lafayette, for relatrix (No. 46,511).
Davidson, Meaux, Onebane & Donohoe, Richard C. Meaux, Voorhies, Labbe , Fontenot, Leonard & McGlasson, by H. Lee Leonard, Lafayette, for defendant, codefendant-respondent (No. 46,511).
Davidson, Meaux, Onebane & Donohoe, Richard C. Meaux, Lafayette, for applicant (No. 46,516).
Simon & Trice, Voorhies, Labbe , Fontenot, Leonard & McGlasson, by H. Lee Leonard, Lafayette, for respondents (No. 46,516).
White & May, Baton Rouge, Fred Gisevius, Jr., Herman Schroeder, Kierr & Gainsburgh, New Orleans, Gordon White, Baton Rouge, for amicus curiae.
This is a suit for damages arising out of a motor vehicle accident.
On September 11, 1960 at about 10:00 a.m., plaintiff, Mrs. Aline Gaspard, was a passenger in a Chevrolet automobile owned by her husband, Deussard Gaspard, which was being driven by her son, Wilman Gaspard, a 15-year-old minor, in a northerly direction in Vermilion Parish on Louisiana Highway 35, a black topped two-way road. The other passengers in the car were plaintiff's sister-in-law, Mrs. Eudon Gaspard, who was seated on the front seat with plaintiff and her son, and two of plaintiff's grandchildren who were occupying the rear seat. This group had been to church at Forked Island and were returning one of the grandchildren to the home of plaintiff's daughter which was north of Forked Island and on the west side of the road. There was a drizzling rain and plaintiff's son had been driving the car at a speed of approximately 45 miles per hour until he reached a point about 178 feet from the place in the road at which he intended to make a left turn into the premises of his sister. At this point (178 feet away), he retarded the speed of the car considerably by braking it and gave notice, by electric rear light signals, of his intention to make a left turn. At that time, a Lincoln automobile being driven by Bradley C. LeMaire, also travelling north at a speed of 55 miles per hour, was approaching the Gaspard car from the rear and, just as the driver of the Gaspard car was executing the left turn in and over the passing lane, the LeMaire car, which had almost overtaken it and was attempting to pass it, collided in said passing lane with the left side of the Gaspard car.
Plaintiff, having sustained personal injuries as a consequence of the accident, seeks recovery of damages from LeMaire and his insurance carrier, United States Casualty Company, and also North River Insurance Company, the insurer of her husband's car, alleging that the mishap resulted from the combined negligence of LeMaire and her son, in that each failed to keep a proper lookout and have his vehicle under control.
The case was tried by a jury which returned an in solido verdict against all defendants for $19,500. 1 The court thereafter finding that defendant North River Insurance Company's liability for bodily injuries was limited to $10,000 per person under the terms of its policy and that United States Casualty Company's limit of liability for bodily injuries under its policy was $5,000 per person, entered judgment on the verdict against all defendants in solido and correctly restricted the amount of solidary liability of North River Insurance Company to $10,000 and that of United States Casualty Company to $5,000. This judgment was appealed by all defendants to the Court of Appeal, Third Circuit. That court, while apparently approving the finding of the jury that both LeMaire and plaintiff's son were guilty of concurrent negligence having causal connection with the accident, concluded that plaintiff was, nevertheless, not entitled to recover from LeMaire and his insurer because the contributory negligence of plaintiff's son was to be imputed to plaintiff. Accordingly, the judgment of the district court was reversed as to these defendants and affirmed only insofar as it held North River Insurance Company for $10,000 conformably with the limit of liability expressed in its policy. See Gaspard v. LeMaire, La.App., 146 So.2d 467.
Plaintiff and North River Insurance Company then applied here for certiorari. Both applications were granted.
In this Court, whereas plaintiff is seeking merely a reinstatement of the judgment of the trial court, the two insurance companies and LeMaire have reurged all of the factual and legal contentions made in the courts below. North River Insurance Company contends, initially, that the courts below erred in holding that Wilman Gaspard was guilty of negligence in any respect and that the accident was caused solely through the fault of LeMaire.
On the other hand, LeMaire and United States Casualty Company argue that the sole cause of the accident was the negligence of Wilman Gaspard in making a sudden left turn across the path of the oncoming LeMaire vehicle which was overtaking the Gaspard car at the time the left turn was attempted.
After a careful examination of the evidence, we have no hesitancy in concluding that neither one of these contentions has any merit. The testimony of LeMaire exhibits that he did not exercise a proper lookout. He was returning the Lincoln automobile to Kaplan, where he had borrowed it from a relative following a Saturday night of carousing and admittedly was suffering from the effects of his intemperance. He did not even see the signal lights of the Gaspard vehicle giving notice of the driver's intention to execute a left turn and, when he was but 90 feet from the rear of that car, he swerved over into the passing lane without slackening his 55 mile per hour speed in an attempt to overtake it when he should have been aware that a left turn was to be executed.
While young Gaspard's evidence exhibits that his overall operation of his father's car was prudent, we nevertheless conclude that he was contributorily negligent for he faultered in his duty of lookout in one important respect. We have no doubt he had been driving carefully, that he slowed down and, observing the LeMaire car several hundred feet to the rear, gave a proper signal for a left turn at a time when, and under circumstances from which, a normal person would have concluded that it would have been safe to execute the maneuver. But, according to his candid admission, young Gaspard failed, after making preparation for the left turn, to look a second time before attempting to execute it. If he had done so, he would have immediately become apprised of the fact that the LeMaire car was in the process of rapidly overtaking him; that it had moved over to the passing lane and that a left hand turn at that moment would unquestionable cause an accident. His failure to look the second time was a dereliction which had causal connection with the accident.
Disposal of the factual issue as to the concurring negligence of the participants in the collision brings us, then, to the more important question of law which prompted this Court to grant writs of review herein--that is, whether the negligence of Wilman Gaspard is imputable to his mother as a bar to her right of recovery from LeMaire and his insurer.
The Court of Appeal, in holding in the affirmative, based its decision on two theories. First it deduced that, under the prior jurisprudence of the Courts of Appeal, plaintiff must be charged with having at least 'the theoretical right of control' over her son's operation of the car as the mission on which they were engaged was one for the mutual benefit of plaintiff, the driver and the other members of the family who had attended church and that, under these circumstances, the contributory negligence of the driver is imputed to plaintiff and bars her recovery.
Moreover, the court found that imputation of the son's negligence was proper in view of Article 217 of the Civil Code which provides that, as long as the child remains under the authority of his parents, he is bound to obey them '* * * in everything which is not contrary to good morals and the laws'. From this codal article the court concluded that plaintiff had the right to control her son's driving and that she had even verified this right by testifying that, while she was in the car, she had control over her son's actions.
We do not believe that the conclusions of the Court of Appeal on this phase of the case are well founded. Imprimis, we hasten to observe that albeit Mrs. Gaspard did state under cross-examination that she believed that her son would have obeyed her if she had told him what to do or where to go and that she was '* * * the boss of the car * * *' while riding in it, these answers to suggestive questions may not properly be interpreted as meaning that she supervised or attempted to assume control of the mechanical operation of the car. We think it is more accurate to say that plaintiff intended to convey that her son was obedient and that he would comply with her desires as to the route to be taken and the places to go.
Article 217 of the Civil Code, which deals with parental authority, states the general duty of every child to obey his father and mother. It does not supply the answer to the question posed here which pertains essentially to the barring of a right of recovery of one free from personal negligence by imputing to such person the contributory negligence of another person because of their legal relationship. Under the topic 'Negligence', Section 234 of 38 Am.Jur. states:
'The term 'imputed negligence' refers to the rule which visits upon one person responsibility for the negligence of another.' The text continues, in Section 235, thus:
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