Hall v. Woods

• Court: Court of Appeal of Louisiana
• Writing for the Court: SCHOTT
• Citation: Hall v. Woods, 294 So.2d 918 (La. App. 1974)
• Decision Date: 10 May 1974
• Docket Number: No. 6236,6236
• Parties: Jerry HALL, Individually and on Behalf of the community of Acquets and Gains existing between himself, et al. v. Andy W. WOODS et al.

Page 918

294 So.2d 918

Jerry HALL, Individually and on Behalf of the community of Acquets and Gains existing between himself, et al. v. Andy W. WOODS et al.

No. 6236.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1974.

Rehearing Denied June 6, 1974.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for Dick Bohn Ford, Inc. and Liberty Mut. Ins. Co., defendants-appellants.

Raymond D. Levith, New Orleans, for plaintiffs-appellees.

Hammett, Leake & Hammett, Donald A. Hammett, New Orleans, for Government Employees Ins. Co., defendant in reconvention.

Before REDMANN, SCHOTT and MORIAL, JJ.

SCHOTT, Judge.

Appellants, Dick Bohn Ford, Inc. and Liberty Mutual Insurance Company, have appealed from a judgment taken against them by plaintiffs for damages arising out of an automobile accident which occurred on October 3, 1969.

Prior to the accident plaintiffs, Mr. and Mrs. Hall and their son, Timothy, had been proceeding in their automobile on Interstate Highway 10 from Slidell to New Orleans when they suddenly entered a fog bank in which there was virtually no visibility. Hall was moving very slowly in the center of the three lanes and intended to move over to the right side of the highway when his automobile was struck from the rear by a station wagon driven by Kenneth E. Thomas, allegedly owned by Dick Bohn Ford, Inc. and allegedly insured by Liberty Mutual Insurance Company. Although this was a slight impact and none of the Halls sustained any injury from this impact, pact, Hall smelled gasoline and surmised that the tank had been ruptured in the collision so he turned off the ignition and resolving that they would leave the automobile and extricate themselves from what he perceived to be a dangerous situation. While he was in the process of reaching for his son in the back seat of the automobile, and after his wife, having unbuckled her own seat belt, was either getting or had just gotten outside of the car, there was another collision when a heavy dump truck struck the station wagon propelling it into the plaintiffs' automobile and throwing Mrs. Hall to the side of the highway. Originally the defendants along with appellants were Andy W. Woods, Stanley E. Crawford and State Farm Mutual Automobile Insurance Company, the driver, owner and insurer of the dump truck, as well as Thomas, the driver of the station wagon. Thomas was never served with the petition and citation and did not testify at the trial of the case.

As to Woods, Crawford and State Farm, in November, 1972, a settlement was made by plaintiffs for $25,000 with a full reservation of the rights of plaintiffs to proceed against Thomas and appellants. Pursuant thereto on December 18, 1972, a judgment was signed dismissing plaintiffs' suit against Woods, Crawford and State Farm, and reserving plaintiffs' rights against Thomas and appellants. Notwithstanding this judgment of dismissal, after trial of the case, judgment was rendered in favor of plaintiffs and provided 'that all of these sums are to be assessed against the defendants, Andy W. Woods, Stanley E. Crawford, State Farm Mutual Automobile Insurance Company, Dick Bohn Ford, Inc., and Liberty Mutual Insurance Company, jointly, severally, and in solido, in addition to legal interest from date of demand until paid, and all costs of these proceedings.'

In reasons for judgment, the trial judge found that Hall came to a stop after the first impact because he smelled gasoline, that he and his family started to get out of the car and while in the process of doing so their automobile was struck again with 'a tremendous impact, injuring the Plaintiffs.'

Appellants specify two errors, the first being that there was no evidence whatsoever to connect them with the driver of the station wagon, Kenneth Thomas. The second specification is that the trial court failed to find that the sole proximate cause of the injuries was the negligence of Andy Woods and that he failed to find contributory negligence on the part of Hall. We will treat these specifications in inverse order.

Appellants' argument is that Woods was independently negligent as opposed to the driver of the station wagon because each driver had the separate and individual obligation to operate his vehicle in such a manner that it would not collide with a preceding vehicle under the circumstances of reduced visibility. Citing from this Court Hall v. Ferguson, 88 So.2d 489 (La.App.Orl.1956), Graves v. Liberty Mutual Insurance Company, 75 So.2d 513 (La.App.Orl.1954) and Jarreau v. Toye Brothers Yellow Cab Company, 24 So.2d 700 (La.App.Orl.1946), as well as Hudgins v. Gage, 194 So. 105 (La.App.1st Cir. 1940), appellants contend that where two separate and distinct impacts occur in accidents involving multiple car collisions the defendant whose negligence caused one of the collisions but did not cause the injuries to the plaintiff should be absolved of legal liability. But the cited cases can all be distinguished on the facts. In each of these emanating from this Court, all of the damage and/or injury was the direct result of the first collision and there was no damage shown to have resulted from the subsequent collision. In each case the Court found that the subsequent collision was not a proximate cause of the plaintiff's damages. In the fourth cited case the Court found no negligence on the part of any of the defendants.

The matter addresses itself to whether the negligence of the station wagon driver in the instant case was a proximate cause of the injuries sustained by the Halls. In one of the latest discussions on the subject of proximate cause, the Supreme Court in Home Gas & Fuel Co. v. Mississippi Tank Co., 246 La. 625, 166 So.2d 252, said:

'To be actionable the cause need not be the sole cause, but it must be a cause in fact, and to be a cause in fact it must have a proximate relation to the harm which occurs and it must be substantial in character.'

In Larkins v. United States Fidelity & Guaranty Co., 258 So.2d 132 (La.App.2nd Cir. 1972), the following is said:

'Therefore, to constitute proximate cause as distinguished from remote cause, the negligent act must be the primary or moving cause of the injury, or that cause which in natural or continuous sequence, unbroken by any efficient or intervening cause, produces injury and without which the accident could not have happened, provided the injury is of such nature as to have been reasonably anticipated or foreseeable as the natural and probable consequence of the wrongful act.'

Similar expressions can be found in Rossiter v. Aetna Casualty & Surety Company, 255 So.2d 103 (La.App.2nd Cir. 1971), Monger v. McFarland, 205 So.2d 86 (La.App.3rd Cir. 1967), and Hinegardner v. Dickey's Potato Chip Co., 205 So.2d 157 (La.App.1st Cir. 1967). In the Monger case the Court held that for a negligent act to be actionable it must be the moving cause of the injury 'without which the accident could not have happened.'

In the instant case there is no doubt about the negligence of the driver of the station wagon. The argument is only that that negligence was not a proximate cause of the injuries suffered by the Halls. In the first place, there was a lapse of a very short period of time, 30 seconds according to the testimony of Mr. Hall, between the first impact and the second impact. While it can be argued that this means that the Hall...