Hinegardner v. Dickey's Potato Chip Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: BAILES
• Citation: Hinegardner v. Dickey's Potato Chip Co., 205 So.2d 157 (La. App. 1967)
• Decision Date: 13 November 1967
• Docket Number: No. 7123,7123
• Parties: Robert W. HINEGARDNER et ux., Plaintiffs-Appellants, v. DICKEY'S POTATO CHIP COMPANY, Inc., et al., Defendants-Appellees.

Page 157

205 So.2d 157

Robert W. HINEGARDNER et ux., Plaintiffs-Appellants, v. DICKEY'S POTATO CHIP COMPANY, Inc., et al., Defendants-Appellees.

No. 7123.

Court of Appeal of Louisiana, First Circuit.

Nov. 13, 1967.

Rehearing Denied Dec. 19, 1967.

Writ Refused Feb. 2, 1968.

W. Brian Babin, of Lonnie A. Davis & Associates, Walker P. Macmurdo, of Percy, Macmurdo & Gray, Baton Rouge, for Dickey's Potato Chip Co., Inc.

Robert J. Vandaworker, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for Commercial Properties Development Corporation and Liberty Mutual Ins. Co.

H. Payne Breazeale, of Breazeale, Sachse & Wilson, Baton Rouge, for Montgomery Ward & Co., Inc.

Before LANDRY, REID and BAILES, JJ.

BAILES, J.

This is an appeal by the plaintiffs-appellants, Robert W. Hinegardner and his wife, Mrs. Christine S. Hinegardner, from the judgment of the trial court rejecting their demands for damages arising out of a collision between an automobile driven by Mrs. Hinegardner and a truck owned by Dickey's Potato Chip Company, Inc. The plaintiff-husband sued for special damages ordinarily, in such cases, recoverable by the community, and the plaintiff-wife sued for general damages suffered by her by reason of the physical injuries she sustained in the collision.

The defendants are: Dickey's Potato Chip Company, Inc. (Dickey's); Commercial Properties Development Corporation (Commercial Properties), and its insurer, Liberty Mutual Insurance Company; Montgomery Ward and Company, Inc. (Montgomery Ward); and Walgreen Louisiana Company, Inc. (Walgreen).

After trial in the district court, the judge a quo found that the plaintiff-wife, Mrs. Christine S. Hinegardner, was guilty of contributory negligence which barred her recovery, and that this negligence was imputed to the claim asserted by her husband, Robert W. Hinegardner, for the community loss, and that the imputation of this negligence barred recovery of the community claim. We find the trial court correctly disposed of all issues herein, and we affirm the judgment rejecting the plaintiffs' demands.

Defendant, Walgreen, was sued alternatively for workmen's compensation benefits on the ground that the accident in which plaintiff was injured occurred on the premises of her employer and therefore within the course and scope of her employment. Walgreen filed an exception of improper cumulation of actions and parties. The trial court sustained the exception and dismissed Walgreen from this suit. Plaintiffs made no complaint of this ruling.

The relationship of the various defendants to the claims of the plaintiffs is the following: Dickey's was the owner of the truck and the employer of its driver which struck the vehicle being driven by Mrs. Hinegardner; Montgomery Ward is the owner of the business conducted in the building at the southeast corner of which this accident occurred; however the legal relationship of Commercial Properties to any of the parties is neither pleaded, admitted nor proven by or in the record.

The accident giving rise to this action occurred on March 30, 1964, between eight and nine o'clock in the morning, as Mrs. Hinegardner was driving to work. The collision between her automobile and the panel delivery truck of Dickey's occurred at the intersection of the driving lane which runs east and west in front of Montgomery Ward, and the driving lane which runs north and south along the east side of the Montgomery Ward building, on the Bon Marche parking lot.

While the overall dimensions of the parking lot are not reflected by the record, from the aerial photographs introduced in evidence, it is shown that this area is a large shopping center or complex located on the north side of Florida Blvd. in the City of Baton Rouge. Various business establishments are located along the west, north and about one-half of the east side, resembling in a fashion, an inverted 'J' with the long stem of the letter 'J' extending along the west side of the area. Practically all of the area between the portion occupied by the business establishment and Florida Blvd. is devoted to either parking areas or driving lanes or aisles. None of this area is public property, although there is an implied invitation to the public to use this area while patronizing any of the retail establishments in the shopping center. Extending along the inside perimeter of the front of the stores and shops in this area are a sidewalk for pedestrians and a driving lane for vehicular traffic all the way from the southwest corner of the shopping center to the northeast corner of the Montgomery Ward building.

Mrs. Hinegardner testified that on the morning of the accident she entered the shopping center from Florida Blvd. near the southwest corner and drove uneventfully through the area until she reached the southeast corner of the Montgomery Ward building at the intersection to which reference is above made. As she worked at Walgreen drug store located in the northern section of the area, and following her employer's instructions to park in the rear of the business, it was her intention to make a left turn at this intersection, drive north along the east side of the Montgomery Ward building to the rear thereof, then make another left turn to drive west to the parking area to the north and in rear of Walgreen.

It was shown that on this morning, and Mrs. Hinegardner testified that for several weeks prior thereto, Montgomery Ward had a large stack of boats at this southeast corner of the building on the sidewalk as well as some shrubs leaning against the boats. Plaintiff further testified that when she arrived at this intersection she looked to her right to check for traffic, that she saw an automobile approaching the intersection from that direction, whereupon she stopped to permit it to pass. When it passed, she said she drove slowly into this intersection, it being necessary, according to her testimony, to drive into the intersection to determine if she could safely make her intended left turn; that when she was far enough into this intersection to see traffic approaching from her left, she saw the Dickey truck about 50 to 100 feet from her. She stated, '* * * I saw this panel truck coming pretty fast and I didn't have time to go nowhere nor back up because it was coming too fast, and I put on my brakes, and about the time I did that, he hit me.' Also, she testified, '* * * When I saw the car I put on my brakes and he was coming fast enough that about the time I put may brakes on he hit me. * * *.' She emphatically maintained that she drove no farther into the intersection than was necessary for her to look to her left or north.

The driver of the Dickey truck was Latham J. Carver. He died prior to trial from causes unrelated to this accident. It was shown, however, that he had made a delivery stop at Montgomery Ward and had started from a stopped position in the...