Herrin v. Perry

• Decision Date: 10 November 1969
• Docket Number: 49580,49589,49597,Nos. 49579,s. 49579
• Citation: 228 So.2d 649,254 La. 933
• Parties: Willie HERRIN v. David PERRY et al. David PERRY et al. v. Willie HERRIN et al.
• Court: Louisiana Supreme Court

Page 649

228 So.2d 649

254 La. 933

Willie HERRIN v. David PERRY et al.

David PERRY et al. v. Willie HERRIN et al.

Nos. 49579, 49589, 49580, 49597.

Supreme Court of Louisiana.

Nov. 10, 1969.

Rehearings Denied in Nos. 49579 and 49580 Dec. 15, 1969.

Concurring Opinion Dec. 19, 1969.

Norman L. Sissin, Robert J. Jones, R. Gray Sexton, Baton Rouge, for State of Louisiana through the Department of Highways, defendant-applicant.

Gold, Hall & Skye, Alexandria, for David Perry and Leurine B. Perry, plaintiffs-relators. William J. Guste, Jr., James M. Colomb, Jr., New Orleans, for Enas T. Lane, amicus curiae.

Stafford & Pitts, Alexandria, for Royal Indemnity Co.

Watson, Brittain & Murchison, Natchitoches, for Southern Farm Bureau Casualty Ins. Co., respondent.

Roy & Roy, by Chris J. Roy, Marksville, for Willie Herrin, plaintiff-applicant-appellee.

HAMLIN, Justice.

In these consolidated tort actions demanding damages for physical injuries and property loss resulting from a head-on collision between Willie Herrin's pick-up truck and a pick-up truck driven by Luerine B. Perry, we directed certiorari to the Court of Appeal, Third Circuit, for review of its judgments. Art. VII, Sec. 11, La.Const. of 1921; 215 So.2d 167; 215 So.2d 177; 253 La. 304, 217 So.2d 407; 253 La. 305, 217 So.2d 407; 253 La. 306, 217 So.2d 408; 253 La. 307, 217 So.2d 408.

In the case of Perry v. Herrin, 215 So.2d 167, the Court of Appeal reversed and set aside the awards by the district court in favor of David Perry individually and in favor of Luerine B. Perry; their claims were dismissed. The Court reversed and dismissed the award of $1,500.00 in favor of David Perry on behalf of his minor child, Nadine Perry, as to Willie Herrin and Southern Farm Bureau Casualty Insurance Company but affirmed it as to defendant Royal Indemnity Company. ¹

In the case of Herrin v. Perry, 215 So.2d 177, the Court of Appeal reversed and set aside the judgment of the trial court which had dismissed Willie Herrin's suit. It rendered judgment in favor of Willie Herrin and against David Perry, The Louisiana State Department of Highways, and Royal Indemnity Company, jointly and in solido, for the sum of $59,246.56, plus interest and costs, the liability of Royal Indemnity Company being limited by its policy to $20,000.00. The Court further rendered judgment in favor of Willie Herrin for and on behalf of Southern Farm Bureau Casualty Insurance Company and against the defendants supra, for the sum of $1,630.00, plus interest, the award being subject to Royal Indemnity Company's limitation of liability. ²

The facts leading to the filing of plaintiffs' suits are correctly stated by the Court of Appeal as follows:

'The scene of the accident is on Louisiana Highway No. 457, also known as Latanier Road, a two-way, two-lane, blacktopped secondary road, running generally north and south through a rural farm area. The asphalt pavement is 20 feet wide with shoulders on each side of about 5 feet. For at least 3/4 of a mile south of the scene, the road is straight, but immediately north of the scene it curves gradually to the west and there is a curve sign on the east shoulder about 500 feet south of the curve. The speed limit is 60 miles per hour.

'The accident occurred on March 14, 1966 at about 11:30 a.m. Rain had fallen earlier in the day and the pavement was wet, but it was only 'misty' at the time of the collision.

'A sign repair crew, 3 employees of the Department of Highways, had parked their truck, headed north, on the east side of the highway, about 6 feet north of the curve sign, which they intended to change to a larger size. A preponderance of the evidence shows that the left-hand wheels of the truck extended out into the northbound lane of traffic, partially obstructing it. A northbound vehicle had to go partially into the west lane of traffic to pass the truck.

'The plaintiff, Willie Herrin, is the only eyewitness to the collision. Mrs. Perry could remember nothing about the accident. The 3 Highway Department employees were in the cab of their truck. They heard Herrin pass and heard the collision, but their windshield was fogged and they saw nothing.

'Herrin's version of the accident is as follows: He had just left his dairy farm, located a short distance south of the scene of the accident, and was driving in a northerly direction at a speed of 40 to 45 miles per hour. He saw the Highway Department truck parked on the pavement about 3/4 of a mile ahead. As he approached the truck, he slowed down and blew his horn as a precaution for any workmen who might be around the truck. Then he moved into the passing lane, observing for any oncoming traffic and for any workmen around the truck. When he had reached a point so close behind the parked truck that he was 'committed to pass' he saw the Perry vehicle coming around the curve ahead.

'Herrin says the Perry truck appeared to be 'coming pretty fast'. He accelerated, passed the Highway Department truck and returned to his own lane of travel. It appeared to Herrin that the Perry truck 'got faster' and, as Mrs. Perry left the curve, she angled into Herrin's lane of traffic and struck him there.

'The vehicles collided left front to left front. Neither truck moved far after the impact. Herrin's vehicle went off head first into the ditch on the east of the highway. The Perry vehicle spun counter clockwise and came to rest facing generally northeast in the west lane of traffic. (Luerine Perry, Nadine Perry, and Willie Herrin were seriously injured as a result of the accident.)

'The crew testified they stopped here (main traveled part of the highway) to change the curve sign to a larger size. They did not park farther on the shoulder for fear of bogging down. They stayed in the parked truck for over 30 minutes because it was raining. Statements of other witnesses show that although it was 'misty', there was not enough rain for anyone else to stop working or even to use their windshield wipers. About 114 steps south of the place where the highway truck was parked, there was a driveway on each side of the road where the truck could easily have parked entirely off the highway.' 215 So.2d 167, 169, 170.

Luerine B. Perry and her husband, David Perry, individually and on behalf of their 20 month old daughter, who was a passenger in the Perry vehicle at the time of the accident, filed suit for damages against Willie Herrin and his liability insurer, Southern Farm Bureau Casualty Insurance Company, and the State of Louisiana, through the Department of Highways, and its liability insurer, Royal Indemnity Company; Royal Indemnity Company's coverage is limited to $20,000 per person and $100,000 per accident.

In his suit for damages Willie Herrin named as defendants David Perry, State of Louisiana, through the Department of Highways, and Royal Indemnity Company. In the alternative, Herrin sought to recover from his own insurer, Southern Farm Bureau Casualty Insurance Company, under the uninsured motorists clause.

The State of Louisiana, through the Department of Highways, filed an exception of immunity from suit in the Perry case. ³ The trial court thereafter dismissed plaintiffs' suit as to the Department. ⁴ The Department of Highways inadvertently did not file an exception of immunity in the Herrin suit; it filed such an exception in the Court of Appeal, which overruled same. The judgments, supra, were rendered, and this Court granted certiorari on the applications of the State of Louisiana, through the Department of Highways, and Royal Indemnity Company (Royal Indemnity Company filed a separate application in the suit of David Perry et al. v. Willie Herrin et al.), Willie Herrin, and David Perry and Luerine B. Perry.

In this Court Royal Indemnity assigns the following errors to the judgments of the Court of Appeal:

1. The Court erred in not sustaining the plea of immunity urged on behalf of the State of Louisiana, through the Department of Highways.

2. The Court erred as a matter of law when it held, under its own fact findings as to the parking of the Highway truck, that this was negligence proximately causing the accident.

3. The Court erred in holding that plaintiff Herrin was not negligent in attempting to pass the Highway truck, said contention being based on the actual distances and measurements found by the Court of Appeal as bearing upon the provisions of the Highway Regulatory Act governing passing maneuvers. (LSA-R.S. 32:75)

4. The Court erred in its reversal of the trial court on the question of Herrin's negligence, said reversal being violative of the manifest error rule, as evidenced by a three to two split of the five member court on this question.

The State of Louisiana, through the Department of Highways, contends that the Court of Appeal erred in not maintaining the exception of sovereign immunity.

David Perry and Luerine B. Perry contend:

1. The majority of the Court of Appeal erred in finding that the point of impact between the Perry vehicle and the Herrin vehicle took place in the Herrin vehicle's lane.

2. The majority of the Court of Appeal erred in holding that Mrs. Perry was not approaching in plain view when Mr. Herrin began his passing maneuver.

3. The majority of the Court erred in failing to find that Mrs. Perry was faced with a sudden emergency not of her own making.

4. The Court erred in failing to increase the awards made in behalf of Nadine Perry and Luerine B. Perry.

Willie Herrin contends that the judgments of the Court of Appeal are correct, except insofar as quantum is concerned. He prays that the judgment in his favor be amended so as to award him $156,906.11 and affirmed in all other respects.

Southern Farm Casualty Insurance Company filed a brief in this Court, in which it prays that the court uphold the decision of the Court of Appeal in all of the cases before this Court.

A review of the records in these cases, a reading of the testimony, and a study of the exhibits...