Laird v. Travelers Ins. Co., s. 51727

• Decision Date: 04 October 1972
• Docket Number: 51744,Nos. 51727,s. 51727
• Citation: 263 La. 199,267 So.2d 714
• Parties: Marshall LAIRD et ux. v. TRAVELERS INSURANCE COMPANY.
• Court: Louisiana Supreme Court

Page 714

267 So.2d 714

263 La. 199

Marshall LAIRD et ux. v. TRAVELERS INSURANCE COMPANY.

Nos. 51727, 51744.

Supreme Court of Louisiana.

Oct. 4, 1972.

Concurring Opinion Oct. 5, 1972.

Rehearing Denied Nov. 6, 1972.

Holt & Woodley, Edmund E. Woodley, Lake Charles, for defendant-applicant.

Navarre & Fuselier, John P. Navarre, Oakdale, Gist, Methvin & Trimble, David A. Hughes, Alexandria, for plaintiffs-respondents.

BARHAM, Justice.

The posture of the case before us, the facts, and the legal issues presented would appear to be acceptable with unanimity to the courts below and this court. However, the method of resolution of the issues as well as the result to be obtained in that resolution has provoked disparity of view.

This controversy, arising out of an automobile accident, is between, on the one hand, Mr. and Mrs. Marshall Laird and their insurer, State Farm Mutual Automobile Insurance Company, and, on the other, Travelers, Insurance Company, insurer of Red River News Company. A pickup truck owned and operated by Laird, with his wife a passenger, which he had stopped partly on the asphalt or travelled portion of a highway, was struck from the rear by a truck-trailer owned by Red River News Company and driven by Ralph Hare, Jr., an employee of that company, in the course of Red River's business. Laird and his wife Gracie suffered personal injuries and property damage, and incurred medical expenses.

The Lairds brought a direct action against Travelers, Red River's liability insurer. Travelers answered with a general denial and pleaded Laird's contributory negligence. Alternatively, as third-party plaintiff, Travelers made Laird's liability insurer, State Farm, a third-party defendant, and reconvened against Marshall Laird. In this third-party demand and reconvention it was alleged that Laird's stopping on the highway was 'proximate negligence' which made him a joint tortfeasor with Hare, as such liable, with his insurer, as solidary obligors for one-half of any amount recovered by Mrs. Laird against Travelers. Judgment was prayed for accordingly.

The trial judge found that the cause of the accident was Hare's failure to maintain a proper lookout while travelling 55 to 65 miles per hour. Damages were awarded to Marshall Laird and Gracie Laird in the sum of $30,000.00 and $10,000.00 respectively. Traveler's third-party demand was dismissed.

On Travelers' appeal the Third Circuit Court of Appeal agreed that Hare was negligent in not keeping a proper lookout, but also found Laird negligent for violating the statutory prohibition (R.S. 32:141(A)) against stopping on the highway when it was practicable to stop off the highway. That court additionally determined that, as between Laird and Hare, Hare had the last clear chance to avoid the collision, and that Laird was entitled to recover against Travelers, the insurer of Hare's employer. However, having found that Laird's negligence made him a joint tortfeasor with Hare, liable as such in solido with Hare for the injuries to Gracie Laird, the Court of Appeal determined that Travelers was entitled to recover from Marshall Laird and his insurer State Farm in contribution one-half of any amount awarded Gracie Laird against Travelers.

The Court of Appeal, finding the $30,000.00 trial court award to Laird for pain, suffering, and disability to be manifestly excessive, reduced that award to $20,000.00. It affirmed the $10,000.00 award to Gracie Laird, and gave judgment in favor of Travelers against Marshall Laird and his insurer for $5000.00, or one-half of the $10,000.00 award to Gracie Laird. See La.App., 251 So.2d 73.

We granted certiorari on the application of Marshall Laird and State Farm, and also on the application of Travelers.

As stated above, our finding of fact is in substantial accord with that of the trial court and the Court of Appeal.

Marshall Laird was driving his pickup truck west on Louisiana Highway 112 on a clear, dry day, with his wife Gracie as a passenger. The road ran through gently rolling hills, and its 20-foot travelled portion was surfaced with asphalt. Posted on the crest of a slight hill were three large, conspicuous highway signs (two on the north shoulder and one on the south shoulder) warning that men were doing road work ahead, and Highway Department employees were working in the ditches along the highway 600 to 900 feet forward from the crest and the signs.

Here Laird stopped his pickup truck as far as he could on the righthand shoulder with half of the truck occupying less than three feet of the pavement, leaving free more than seven feet of his lane and the entire 10 feet of the other lane. He stopped his motor but kept his foot on the brake pedal to activate the rear brake light.

Laird asked certain directions of his nephew, one of the workers, and N. E. Johnson, the work crew foreman, who was acquainted with Laird, also came over to his truck. While Johnson stood on the pavement at the side of the stopped truck, at least two cars passed it without difficulty, one going in each direction. About five minutes after Laird had stopped, Johnson, keeping a lookout up and down the highway for traffic, heard and then saw the Red River News Company's van truck and trailer approaching from the east. The driver of the van truck, travelling at 55 to 65 miles per hour, appeared not to see Johnson or the Laird pickup truck, for he neither changed direction nor reduced speed. When Johnson realized this, he moved to the south shoulder of the road, shouting and waving in an attempt to draw the driver's attention to the stopped truck ahead. The driver did not react, however, until he was only a few feet from the pickup. Then he applied his brakes and turned slightly to his left, but too late to avoid colliding with the Laird vehicle.

The impact hurled the pickup 150 feet across the ditch and into the woods. The van truck and trailer were separated, the truck coming to rest in the south ditch 74 feet from the point of collision and the trailer in the woods north of the road.

Obviously Hare's attention was not on the road in front of him, as his own testimony and Johnson's make clear. Just before he came over the crest of the hill, Hare began looking in his rear view mirror to locate a companion who was following him in another Red River News Company vehicle, and his attention was thus diverted from the road ahead. His own testimony supports the conclusion that he could have avoided the collision if he had been keeping a proper lookout. There was no other traffic in the vicinity. He testified that he did not see the warning signs, the pickup truck, or Johnson hailing him. He had an unobstructed view in front, perhaps even before the crest of the hill but at least at that point. He should have seen what was directly in his path, and had ample time to stop or make a safe passing movement. His failure to do so was gross negligence from which liability flows.

The real problem presented by these facts is whether Laird was guilty of contributory negligence which continued to the moment of the impact so that he cannot recover for his injuries and damage. Moreover, the contention is raised that Laird was negligent, a joint tortfeasor with Hare, responsible as a solidary obligor for one-half of the damage incurred by Gracie Laird, his wife, the guest passenger.

Under the facts presented it is obvious that Laird may be called criminally negligent or at least liable to criminal sanctions to the extent that he was in violation of R.S. 32:141(A), which provides:

'Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.'

Laird's 'criminal negligence' consisted of his violation of the first part of this provision by stopping on the travelled portion of the highway when it was 'practicable to stop * * * off such part of said highway', for there was within 40 feet of his stopping place a side road where he could have parked completely off the highway. However, as we said in Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1971), 'Criminal statutes are not, in and of themselves, definitive of civil liability' and do not set the rule for civil liability; but they may be guidelines for the court in fixing civil liability. Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317 (1913); Malone, Contrasting Images of Torts--The Judicial Personality of Justice Traynor, 13 Stanford L.Rev. 779; Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363; Morris, The Relation of Criminal Statutes to Tort Liability, 46 Harv.L.Rev. 453; Morris, The Role of Criminal Statutes in Negligence Actions, 49 Col.L.Rev. 21; James, Statutory Standards and Negligence in Accident Cases, 11 La.L.rev. 95, 103--124; Prosser, Torts (4th ed. H.B.), § 36, p. 190. In criminal prosecutions no harm need result from the act which violates the statute for the actor to be subject to criminal sanctions. Moreover, violation of a criminal statute in combination with some resultant harm does not, in and of itself, impose civil liability. We must determine whether the prohibition in the statute is designed to protect from the harm or damage which ensues from its violation. Lopes v. Sahuque, 114 La. 1004, 38 So. 810 (1905); Picou v. J. B. Luke's Sons, 204 La. 881, 16 So.2d 466 (1943); Perkins v. Texas and New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962); Lee v. Carwile, 168 So.2d 469 (La.App.3rd Cir. 1964) (c...