Gunter v. Lord

• Decision Date: 12 July 1961
• Docket Number: No. 312,312
• Citation: Gunter v. Lord, 132 So.2d 488 (La. App. 1961)
• Parties: David GUNTER et al., Plaintiff-Appellees, v. Oscar E. LORD et al., Defendant-Appellants.
• Court: Court of Appeal of Louisiana

Page 488

132 So.2d 488

David GUNTER et al., Plaintiff-Appellees, v.Oscar E. LORD et al., Defendant-Appellants.

No. 312.

Court of Appeal of Louisiana, Third Circuit.

July 12, 1961.

Rehearing Denied Sept. 7, 1961.

Gist, Murchison & Gist, by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.

E. M. Nichols, Lake Charles, Jeron J. LaFargue, Sulphur, for plaintiffs-appellees.

Before FRUGE , SAVOY and CULPEPPER, Judges.

FRUGE , Judge.

This is a suit in tort arising from a collision.From an adverse judgment defendants appeal.Plaintiff has answered the appeal asking that the awards be increased.

Plaintiffs are Mr. and Mrs. David Gunter, and Mrs. Hazel Lord.Defendants are Oscar E. Lord and his insurer, State Farm Insurance Company.(The suit as to Oscar E. Lord, husband of Mrs. Hazel Lord, has been dismissed.)Plaintiffs, the guest passengers of Oscar E. Lord, and Oscar E. Lord(who was driving) were proceeding in a southerly direction on the morning of July 2, 1959, a few miles south of Alexandria, Louisiana, on their way to Lake Charles and Sulphur, whem Oscar Lord suddenly applied the brakes of his automobile and veered into the ditch on his right or the western side of the highway.The testimony is to the effect that Mrs. Lord, who was sitting on the front right seat, was thrown against the 'dashboard'; Mr. Gunter, who was sitting on the back right seat behind Mrs. Lord, was thrown over the front seat; and Mrs. Gunter, who was sitting on the rear left, was thrown onto the rear floor.Immediately after the car was stopped Mr. Lord and Mr. Gunter assisted their wives in regaining their positions.Mr. Gunter testified that Mr. Lord made a statement to the effect that he(Mr. Lord) had almost run into a preceding truck and that he(Mr. Gunter) saw a truck and trailer proceeding on down the highway.Mr. Gunter also testified that Oscar Lord had 'slapped' his brakes on.Mrs. Lord testified that she did not see anything.Mrs. Gunter testified that she heard the men saying that they had almost hit the rear-end of a truck and that she heard Mr. Lord making that statement.The statement attributed to Mr. Lord was made as he and Mr. Gunter were aiding their wives.Mr. Lord was in Utah working at the time of trial and did not testify.

The lower court found that the plaintiffs have proved actionable negligence on the part of Oscar E. Lord in that Lord had failed to keep a proper lookout and in following the preceding vehicle too closely and this was the proximate cause of the accident.The trial judge found in effect that:

'The acts of the defendant in suddenly applying his brakes and veering his vehicle to the right such as to cause the vehicle to leave the highway, cross the shoulder of the road and go down an embankment into the ditch on the side is certainly an indication that the driver was following the preceding vehicle too closely.'

With the foregoing we are in full accord.Moreover, accepting the 'res gestae' statement attributed to Mr. Lord that he had almost run into the back of a truck then it is obvious, without more, that Mr. Lord was following the preceding truck too closely (seeLSA-R.S. 32:234 as to following a preceding vehicle, and cases thereunder) and/or not keeping a proper lookout, which was actionable negligence and the proximate cause of the accident insofar as the record discloses.

There is no question but that the statement made by Mr. Lord was made spontaneously and hence admissible as a spontaneous statement made during the res gestae of the occurrence to which the statement referred.It was made immediately after the automobile had come to a stop and while Mr. Lord was helping the passengers.A declaration, to be res gestae, need not be coincident in time with the facts sought to be proved, when the time and the fact are so closely connected with the declaration that the declaration can be deemed a spontaneous explanation of the real cause.Butler v. Washington-Youree Hotel Co., La.App., 160 So. 825.This is not as in the case of Jack v. International Paper Co., La.App., 56 So.2d 875, where the declaration was made approximately one year after the occurrence and held not to be within the res gestae, nor as in O. E. Haring, Inc. v. Boylan's Private Police, La.App., 56 So.2d 588, where the evidence was offered to show a statement of a person, deceased at the time of trial, to prove an Agency relationship.In Stewart v. Herrin Transp. Co., La.App., 37 So.2d 30, where the statement as to the occurrence was made within five minutes of the accident it was held to have been admissible as part of the res gestae.The rule is applied in other jurisdictions.For example, a clear statement that an assertion made out of court, as testimony to the truth of the fact asserted, is not contrary to the hearsay rule where such statement is made spontaneously as a part of the res gestae of the accident with relation to which such testimony is offered.SeeDavis v. Bennett's Adm'r, 279 Ky. 799, 132 S.W.2d 334.A declaration by a motorist that he knew he was driving fast, which was heard by an injured plaintiff while being removed from the car which had been struck by said motorist, was admissible as res gestae.Duncan v. Rhomberg, 212 Iowa 389, 236 N.W. 638.And in Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 160 P.2d 21, 24, with appropriate citation of authority, it was stated that

"Declarations which are voluntary and spontaneous and made so near the time of the principal act as to preclude the idea of (a) deliberate design, though not precisely concurrent in point of time therewith, are regarded as contemporaneous and admissible.'Statements falling within the rule are admissible although self-serving.* * *'

Defendants allege error in the court below in refusing to admit an accident report made by Mr. Lord shortly after the accident to a representative of his insurer.Apparently defendant feels that the statement would cast doubt on the testimony as to the res gestae statement or as to the occurrence itself.The report was not within the res gestae and if defendant believed that Mr. Lord would have testified favorably to its cause then it should have obtained his testimony.Admittedly Mr. Lord was in Utah, however he was, nevertheless, available to his insurer and under the provisions of the policy was required to aid in the defense of the suit if defendant so requested.SeeTranscriptpage 59, Exhibit P--22, under 'Conditions' No. 5, of the policy of insurance.Moreover, the courts have recognized that testimony of an insured defendant in a suit brought by the assured's wife (as plaintiff)'* * * would naturally have been in favor of his wife's case, and we do not believe in view of that fact, that defendant can be blamed for not using him as its witness.'Although defendant may not be blamed for not having its insured testify, nevertheless the testimony as to Mr. Lord's statement, accepted as true by the trier of fact, leaves defendant in the position of not having produced testimony to negate the apparent negligence.We do not intend nor do we imply that defendant is being penalized for not having Mr. Lord testify, i.e no presumption ¹ is being attached to defendant's failure.However, when plaintiffs offered the res gestae statement, accepted as true, they made out a prima facie case of liability and in the absence of other evidence or testimony to the contrary (defendant having failed to go forward with the evidence)plaintiffs had carried their burden of proof.

The trial judge held that payments under the 'medical payments' clause to Mr. and Mrs. Gunter for medical expenses barred recovery for those damages under the terms of the general liability policy.We disagree with his application of the doctrine of Hawayek v. Simmons, La.App. Orl., 91 So.2d 49, 61 A.L.R.2d 1254.For as was said in Distefano v. Delta Fire & Casualty Company, La.App., 98 So.2d 310, 312,

'It does not appear that called to the attention of the court in the Hawayek case were decisions construing the liability clauses in an automobile liability policy to constitute an entirely separate insuring agreement than that afforded by the medical payments clause.'

That court, First Circuit, ably discussed certain authorities and held payments under the 'medical payments' clause, unless provided to the contrary in the policy, would not be deducted from the medical specials under the general liability clause.Bowers v. Hardware Mutual Casualty Co., La.App. Second Circuit, 119 So.2d 671, is concerned with the situation where The policy provides that the amount payable under the general liability provisions shall be reduced by payments made under the medical expense features of the contract, which was suggested as a differentiating feature in the Distefano case.See alsoWarren v. Fidelity Mutual Insurance Co., La.App. First Circuit, 99 So.2d 382;Bordelon v. Great American Ind. Co., La.App. Third Circuit, 124 So.2d 634;Dumas v. United States Fidelity and Guaranty Co., La.App. Third Circuit, 125 So.2d 12, writs granted, judgment of Court of Appeal, Third Circuit, annulled and reversed and the suit dismissed on other grounds, La., 134 So.2d 45; rehearing granted;Constantin v. Bankers Fire and Marine Insurance Co., La.App. Third Circuit, 129 So.2d 269; and Lewis v. Quebedeaux, et al., rehearing on other grounds, La.App., 134 So.2d 93.Furthermore, '* * * the reasoning in the Distefano case is more legally sound than that in the Hawayek case * * *.'(125 So.2d 21.)(See Dumas case.)

Therefore, we find that the quantum of damages for liability under the general liability provisions should include medical and hospital expenses as specials, and a prior payment under the medical pay clause should not be set-off against the amount payable under the general liability provisions.

Plaintiff, David Gunter, itemized past medical expenses in the amount of $699.60, said amount covering medical for himself and his wife,...