King v. King

• Decision Date: 19 December 1967
• Docket Number: No. 7203,7203
• Citation: 210 So.2d 917
• Court: Court of Appeal of Louisiana — District of US
• Parties: Ella Marie Weatherford KING and Louis Elgin Weatherford v. Otis E. KING, d/b/a King Cabs and New York Fire & Marine Underwriters, Inc.

Page 917

210 So.2d 917

Ella Marie Weatherford KING and Louis Elgin Weatherford v. Otis E. KING, d/b/a King Cabs and New York Fire & Marine Underwriters, Inc.

No. 7203.

Court of Appeal of Louisiana, First Circuit.

Dec. 19, 1967.

On Rehearing Feb. 14, 1968.

Writ Granted March 25, 1968.

Robert S. Cooper, Jr., Baton Rouge, for appellants.

Louis G. Baine, Jr. of Seale, Smith, Baine & Phelps, Baton Rouge, for appellees.

Before LANDRY, REID and BAILES, JJ.

REID, Judge.

This suit arises out of an automobile accident which occurred in the early hours of the morning of September 10, 1965, while plaintiff, Ella Marie Weatherford King, then an unemancipated minor, was riding as a guest passenger in a 1963 Chevrolet 4-door automobile owned by Otis E. King, doing business as King Cabs, at the time being driven by his son and employee, Milton J. King. Plaintiff, Louis Elgin Weatherford, is the father of Ella Marie Weatherford King. Plaintiffs allege that following the delivery of two passengers to their destination in the Parish of East Baton Rouge, the cab being driven by Milton J. King was returning to the cab stand in Plaquemine, Louisiana, and while driving in a southerly direction on Louisiana Highway No. 1 in West Baton Rouge Parish, the driver of the cab lost control of the automobile, it left the highway and caused considerable physical damage to the said vehicle and inflicted physical injuries on plaintiff, Ella Marie Weatherford King. The alleged injuries to Ella Marie Weatherford King were a laceration of the left eyebrow, generalized bruises and severe abrasions of the extremities, a compression fracture of the anterior part of the body--of that vertebra known as L-3, a severe and acute lumbosacral strain, all of which they alleged caused great mental pain and anguish and resulted in both temporary and permanent disability.

Otis E. King, doing business as King Cabs, and its insurer, New York Fire & Marine Underwriters, Inc., filed a general denial and further alleged that at the time of the accident Mrs. King was occupying the King vehicle as a social guest and that she was dating Milton King at the time of the accident and has since married him. Defendants further alleged that on the night of the accident, Hurricane Betsy struck the area in which the car was being driven and that the mishap occurred as the result of extreme weather and strong winds rather than any negligence on the part of the driver. In the alternative, the defendants alleged contributory negligence on the part of Ella Marie Weatherford King in leaving a place of safety and going upon the highway during the time a hurricane was present, for her own social pleasure and convenience, and in failing to warn the driver of any imminent or peril danger or negligence, time and circumstances considered. Defendants further allege that Ella Marie Weatherford King assumed the risk of any accident and injury to herself in leaving a place of safety on the night Hurricane Betsy struck and in continuously occupying throughout the night an automobile that was being driven upon the highways in the presence of high winds and heavy rain and contrary to the recommendations and advice being repeatedly issued on the date and during the time Hurricane Betsy was in the immediate area. Defendants also filed an exception of no right and no cause of action which was overruled, and on December 15, 1966, the case was tried on the merits, after which judgment was rendered in favor of the defendants and against the plaintiffs, dismissing plaintiffs' suit with prejudice at their costs and fixing the fee of Dr. Richard M. Moon at $50.00 and taxing the same as cost.

The first and most important question to be considered is which of the two parties involved must bear the burden of proof. It is the contention of the plaintiff-appellant that where a motor vehicle leaves the roadway and becomes involved in an accident, a presumption of negligence arises and that a guest passenger in a motor vehicle is not required to prove that the accident was caused by the negligence of the defendant. While the counsel for the plaintiff-appellant does not specifically deal with the doctrine of res ipsa loquitur, it is evident under the facts as presented in this case that this doctrine should be invoked. The doctrine of res ipsa loquitur is an evidentiary rule, the applicability of which is to be determined at the conclusion of the trial and is in no way governed by the rules of procedure; and, therefore, it is not necessary that it be specifically pleaded by the plaintiff. The doctrine of res ipsa loquitur is generally applied whenever an injury has been sustained and when such an injury has been caused by an instrumentality, under the control of the defendant which does not ordinarily cause injury unless there is negligence. In such cases, the very fact of the injury itself will be deemed as evidence to support recovery and the burden is then placed upon the defendant to exculpate himself from the negligence. In instances where an automobile leaves a roadway and injuries result to guest passengers, it is sufficient for guest passengers to show only that the automobile did, in fact, leave the highway and that injuries were sustained as it must be presumed that an automobile being operated in a careful and prudent manner will not leave the roadway. Fetterly v. McNeely, La.App., 77 So.2d 757; Harris v. Vardado, La.App., 94 So.2d 74; Gulf States Utilities Company v. Guidry, La.App., 183 So.2d 122.

In the present case, the Trial Judge did not submit written reasons for judgment and for this reason, it is difficult to determine whether or not he had applied the doctrine of res ipsa loquitur, but found that the defendant had overcome the presumption arising from the applicability of this doctrine or whether he failed to apply the doctrine and found as a matter of fact that the plaintiff had failed to sustain its burden of proof. We must, therefore, deal with this case according to our own notions and from the evidence as presented, it appears obvious that the doctrine of res ipsa loquitur should be applied in this case and the burden of proof be placed upon the defendant to exculpate himself from the presumption of negligence.

The primary defense asserted by the defendants is that the accident was caused by the winds of Hurricane Betsy and that these winds constituted an 'act of God', thereby relieving the defendant of any negligence. It is the position of the plaintiff that the winds of Hurricane Betsy did not constitute an 'act of God' and the plaintiff cites the case of Rector v. Hartford Accident and Indemnity Company, of Hartford, Connecticut, 120 So.2d 511 (La.Ct. at Appeal, First Cir.1960). In this case the court defined an 'act of God' to be:

'A providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ.'

Applying this definition to the facts as presented in this case, it is evident that the conditions existing at the time of the accident did not constitute an 'act of God' An examination of the above definition shows that one of the requisites of an 'act of God' is that the circumstances could not have been avoided by the exercise of reasonable prudence, diligence, and care. In the present case the conditions surrounding the hurricane had been in existence for quite some time and their effect could hardly be considered as being unforeseeable. Also to be considered with regard to the 'act to God' in concept is the question of whether the 'act of God' was the sole cause of the accident. The plaintiff cites the case of Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So.2d 787, which held that winds of seventy miles an hour which blew a parked airplane into...