Honeycutt v. Indiana Lumbermens Mut. Ins. Co.

• Decision Date: 22 May 1961
• Docket Number: No. 275,275
• Citation: 130 So.2d 770
• Parties: Phanor HONEYCUTT and Mrs. Vera E. Honeycutt v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY and Succession of Thomas Arthur Stephens.
• Court: Court of Appeal of Louisiana — District of US

Page 770

130 So.2d 770

Phanor HONEYCUTT and Mrs. Vera E. Honeycutt v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY and Succession of Thomas Arthur Stephens.

No. 275.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1961.

Rehearing Denied June 13, 1961.

Certiorari Denied June 29, 1961.

Bodenheimer, Looney & Richie, by G. M. Bodenheimer, Shreveport, Arthur C. Watson, of Watson, Williams & Brittain, Natchitoches, for defendant-appellant.

G. F. Thomas, Jr., and Julian E. Bailes, by G. F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.

Before TATE, FRUGE and SAVOY, JJ.

SAVOY, Judge.

This action was instituted by plaintiffs husband and wife against Indiana Lumbermens Mutual Insurance Company, the public liability insurer of T. J. Stephens, and against T. J. Stephens, individually, because of an automobile accident which occurred in the State of Texas on November 14, 1958, wherein a car driven by Tommy Stephens, the son of T. J. Stephens, went out of control and in which plaintiffs' minor son and Tommy Stephens were both killed, and the other occupant of the said car, Billy Joe Smith, was seriously injured.

Plaintiffs allege that the sole and proximate cause of the accident was the gross, wanton and heedless negligence of the driver Tommy Stephens, in driving at an excessively high rate of speed, in failing to keep the car under control, in failing to heed the warnings and admonitions of James Honeycutt and the other passenger to slow down and to drive more carefully, in failing to slow down for steep, sharp curves, and in driving the car in such a manner and at such a high rate of speed as to lose control of the car, in driving it off the highway, striking a tree on the roadside, and turning over.

Plaintiffs then itemized their damages and asked for an in solido judgment against the said T. J. Stephens and his insurer.

Counsel for Indiana Lumbermens Mutual Insurance Company filed an exception of no cause or right of action, and on behalf of the said T. J. Stephens filed a general denial to the petition, and further answering the suit alleged that should the court find that Tommy Stephens was negligent that plaintiffs' son was guilty of contributory negligence, which barred their recovery, in the following particulars:

(1) In failing to protest against the alleged excessive speed and recklessness of Tommy Stephens.

(2) In failing to cause the vehicle to be stopped and leaving same.

(3) In continuing to ride in a vehicle when the driver was allegedly driving in a gross negligent and reckless manner.

Defendants specifically plead the law of the State of Texas as being controlling in this case since the accident occurred in that state. Defendants plead further that under the law of the State of Texas, in order for there to be a recovery on the part of the guest passenger, the accident must have been intentional on the part of the operator of the vehicle, or caused by his heedless and reckless disregard of the rights of others, as provided by the Texas Guest Statute Article 6701b, which law is contrary to the law of this state, and was specifically plead.

Defendants further plead that plaintiffs were barred from recovery for the reason that before recovery could be made on their part, plaintiffs would have to show that the said vehicle in question was driven by the said young Tommy Stephens in a heedless disregard of the rights of others, so as to amount to gross negligence under the Texas decisions.

Plaintiffs then filed a supplemental petition stating that Mrs. Pearl McGraw Smith had been appointed and qualified as administratrix of the Succession of Thomas Arthur Stephens. In answer to the supplemental petition of plaintiffs, the said T. J. Stephens stated that he had been appointed Administrator of the succession of his deceased son rather than Mrs. Pearl McGraw Smith. The said T. J. Stephens specifically plead the provisions of Article 3716 of Vernon's Texas Civil Statutes in bar to this suit. Mrs. Smith's appointment was set aside and T. J. Stephens was appointed as the Administrator of the Succession of his son, Thomas Arthur Stephens.

The answer was filed by defendants under the reservation by Indiana Lumbermens Mutual Insurance Company of its exception of no cause or right of action.

On these issues the case was tried.

The district court maintained the exception of no cause or right of action against Indiana Lumbermens Mutual Insurance Company, and the case was tried against T. J. Stephens in his capacity as administrator of the succession of his son.

After the trial on the merits the district judge granted judgment in favor of plaintiffs and against said administrator in the sum of $15,751.35, $7,500 being awarded the father for the beath of his son, $751.35 being awarded for funeral expenses, and an award to the mother of $7,500 for the death of her son.

From this judgment both the administrator and the plaintiffs have appealed.

This action is a companion suit to and was consolidated for trial with the case of Smith v. Indiana Lumbermens Mutual Ins. Co. et al., 130 So.2d 770.

This Court will first consider the exception of no cause or right of action filed by Indiana Lumbermens Mutual Insurance Company, which exception was maintained by the trial court. The ruling of the trial court was correct under the provisions of LSA-R.S. 22:655, which is a direct action statute. This section provides that the right of direct action is permitted in tort where the accident or injury occurred within the State of Louisiana. Blount v. Blount, La.App. First Circuit, 1960, 125 So.2d 66. Since the accident occurred in the State of Texas, plaintiffs cannot maintain a direct action against the insurer in this state, and the suit was correctly dismissed as against it.

The facts of this case are that on the night of November 13, 1958, Tommy Stephens, with permission of his father, used a four door Renault sedan automobile with the view of going to St. Augustine, Texas. Tommy Stephens picked up Billy Joe Smith and James Honeycutt and left Natchitoches, Louisiana, for Texas. Near Milam, Texas, the automobile driven by young Tommy Stephens ran into a pine tree near the highway, and as a result of the accident the car was demolished, Tommy Stephens and James Honeycutt were killed, and Billy Joe Smith suffered bodily injuries.

Counsel on behalf of defendant Stephens asked that the judgment of the district court be reversed and set forth in his brief the following specifications of error:

(1) The District Court erred in refusing to apply the Texas 'Dead Man's Statute' to a case tried in Louisiana, though occurring in Texas.

(2) The District Court erred in holding that the testimony of the plaintiff was sufficient to sustain its burden of proving gross negligence so as to allow recovery under the Texas Guest Statute which requires gross negligence for a nonpaying guest to recover from his host.

(3) The District Court erred in permitting a witness to testify as to his conclusions rather than facts.

This Court will consider the specifications of error in the order set forth above.

Article 3716 of Vernon's Texas Civil Statutes, commonly referred to as the Texas Dead Man's Statute, provides the following:

'In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.'

The trial judge held that the law of the forum, namely, the law of Louisiana, controlled the admissibility of evidence in this case and allowed Billy Joe Smith to testify at the trial in district court. We are of the opinion that the ruling of the trial court was correct. Since the matter before the court was one of procedure relating to matters of evidence, the rules of evidence in this state should prevail.

In 11 American Jurisprudence, Conflict of Laws, Section 203, this expression is found:

'The weight of authority, as well as sound principles of reason, is in accordance with the rule that questions of evidence are governed by the law of the forum. This rule has been applied in many types of litigation. It should be noticed, however, that if an instrument is rendered void by the operation of the law of the place where it is made, the question, though arising on the offer of the instrument in evidence, is nevertheless one of validity to be determined by the lex loci contractus. For example, in cases where an attempt is made to show want of consideration in a contract, it is said that the question of consideration, arising upon the admissibility of evidence, is not one of procedure and remedy, since it goes to the substance of the right itself and belongs to the construction of the contract.

'The same general...