Gaspard v. Lemaire
| Decision Date | 05 November 1962 |
| Docket Number | No. 681,681 |
| Parties | Aline GASPARD, Plaintiff-Appellee, v. Bradley C. LEMAIRE et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Davidson, Meaux, Onebane & Donohoe, by Richard C. Meaux, and Voorhies, Labbe, Voorhies, Fontenot & Leonard, by H. Lee Leonard, Lafayette, for defendants-appellants.
Simon & Trice, by J. Minos Simon, Lafayette, for plaintiff-appellee.
Before FRUGE , SAVOY and CULPEPPER, JJ.
This is a suit for damages instituted by Mrs. Aline Gaspard against North River Insurance Company as the insurer of an automobile belonging to her husband, Deussard Gaspard, and against Bradley C. Lemaire and his insurer, United States Casualty Company arising out of an automobile accident which occurred when an automobile, owned by Clifford Lemaire and operated by defendant, Bradley C. Lemaire, collided with an automobile driven by Wilman Gaspard, in which Aline Gaspard was riding in the middle of the front seat.
This case was tried before a jury which rendered a verdict in favor of the plaintiff and against United States Casualty Company, Bradley C. Lemaire and North River Insurance Company in the sum of $19,500. From this judgment both insurance companies, North River Insurance Company and United States Casualty Company have appealed suspensively. Bradley C. Lemaire appealed devolutively.
The accident allegedly causing the injuries and damage to Mrs. Gaspard occurred on September 11, 1960, at approximately 10:00 A.M. on Louisiana Highway 35. Wilman Gaspard was driving the vehicle in which plaintiff was sitting in the front middle seat. They were traveling approximately North and were approaching a private driveway to the daughter of the plaintiff on the left side of the road. Bradley Lemaire was driving an automobile belonging to Clifford Lemaire in a northerly direction approaching the Gaspard vehicle from the rear. The accident occurred as Bradley C. Lemaire was attempting to pass the Gaspard vehicle on the left in the passing lane, when Wilman Gaspard made a left turn with the intention of proceeding into the driveway to the home of the daughter of the plaintiff.
Since the jury rendered its verdict against all of the defendants in this action we must assume that they found that both drivers were at fault. Furthermore, we find that this conclusion is consistent with the instructions given the jury by our learned brother in the lower court, which pronounced:
(Tr. 290.)
Learned counsel for defendants, Bradley C. Lemaire and United States Casualty Company, argues that this instruction does not correctly state the law of this state citing numerous cases in support of this position.
In a recent decision, Service Fire Insurance Company v. Johnson and Bell, La.App., 138 So.2d 410, this court had occasion to examine the jurisprudence on this identical issue, and stated:
'Where the owner, with the theoretical right of control over another driving his car, is a passenger therein in an accident when the ride is for his benefit or for the mutual benefit of himself and the driver, then, as to third persons involved in the accident, the negligence of the driver is imputed to the owner as that of an agent, and if a proximate cause of the accident, may either render the owner liable to the third party or constitute contributory negligence barring recovery by the owner from the third party, see Waguespack v. Savarese, La.App., 13 So.2d 726; Weitkam v. Johnston, La.App., 5 So.2d 582; Riggs v. F. Strauss & Son, La.App., 2 So.2d 501, see also Note, 12 La.Law Review 323; Pierrotti v. Huff Truck Lines, Inc., La.App. 1 Cir., 63 So.2d 886; Rodriguez v. State Farm Mutual Insurance Co., La.App., 88 So.2d 432; Martin v. Brown, 240 La. 674, 124 So.2d 904. * * *'
Learned counsel for plaintiff-appellee argues that when the passenger is the owner, there may be some basis for assuming that he or she has control over the car and the manner of its operation. However, he further contends that when the passenger is a wife who has ownership only to the extent that she would be recognized as having an undivided interest in the car at the time the community ceased to exist, and in the meantime has no control whatever over any community property, then any negligence on the part of the driver of the community-owned car cannot be imputed to her unless it be shown that she acted to cause such negligence.
We do not deem it necessary to consider the wife's present rights of ownership in the automobile in the case at bar. While ownership is certainly relevant in the determination of the right of control, it is not the sole test of such control. Thus in the case of Smith v. Sladovich and Rosengarten, 3 La.App. 527 it was held that a major son was responsible for the negligence of a friend whom he permitted to drive his father's automobile.
Similarly in the case of Monroe v. Heard, La.App., 168 So. 519, the court stated:
'The liability of the occupant of an automobile driven by another under his direction and control is stated in 42 Corpus Juris at Page 1123, as follows: 'So likewise where the occupant, Although he is not the owner and is not driving the vehicle himself, is in actual control of its operation, or where he has the right to control and direct the driver and fails to do so, or where, being in control, he permits another to drive, he will be held responsible for any injury sustained by a third person by reason of the negligent operation of the vehicle.''
Further basis for the mother's right of control...
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