Larkin v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 28 June 1957
• Docket Number: No. 43356,43356
• Citation: 233 La. 544,97 So.2d 389
• Parties: Marion Palmer LARKIN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Louisiana Supreme Court

Page 389

97 So.2d 389

233 La. 544

Marion Palmer LARKIN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 43356.

Supreme Court of Louisiana.

June 28, 1957.

Rehearing Denied Oct. 8, 1957.

Hynes, Mathews & Lane, Baton Rouge, for defendant-appellant.

Steve A. Alford, Jr., Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for plaintiffs-appellees.

FOURNET, Chief Justice.

This suit was instituted by survivors of Charles Ray Draper¹ against the State Farm Mutual Automobile Insurance Company, the public liability insurer of Carl S. Swilley, in whose automobile Draper met his death on or about May 27, 1954, the allegations of the petition being that Draper was riding as a guest passenger in the car which was being driven by Swilley on U.S. Highway 61 when an accident occurred; that on the following morning the said automobile was found completely submerged in water in a canal paralleling the highway, both occupants being dead at the time of discovery, and 'That petitioners are without information regarding the actual happening of the accident, but the circumstances surrounding the discovery of the vehicle and its deceased occupants indicate that said accident and the resulting death of Charles Ray Draper were proximately caused solely and exclusively by the negligent and reckless operation of said vehicle by Carl S. Swilley, and that the accident would not have occurred in the absence of his negligence and recklessness; that therefore the doctrine of res ipsa loquitur is applicable and the burden is upon the defendant to prove that the said Carl S. Swilley was free from negligence.'² The defendant in answer categorically denied all material allegations, with an alternative plea of contributory negligence, assuming Draper to have been driving, or, in the further alternative, should it be established that Swilley was the driver, then that Draper acquiesced in the manner in which the car was being driven and assumed the risk incidental to the trip. Following trial on the merits there was judgment for the plaintiffs to the limit of liability under the policy ($10,000), the trial judge having found from the evidence that Swilley was driving the car, that a prima facie case of negligence and want of ordinary care was made out, and that 'the doctrine of res ipsa loquitur clearly applied.' The case is now before us on a writ of certiorari to review the judgment of the Court of Appeal, which affirmed the district court. See 91 So.2d 94.

The known facts are that early on the morning of May 27, 1954, passing motorists on Highway 61 (known as the Airline Highway, and connecting Baton Rouge and New Orleans) reported to police that an automobile was resting on its top, submerged in a canal adjacent to the highway near Sorrento, with only the wheels visible above the water. When the car had been righted and pulled from the canal the bodies of two men were discovered inside and were later identified as those of Swilley and Draper; Swilley's body was in a seated position under the steering wheel and that of Draper was 'crumpled up' under the dashboard in front of the adjoining seat. It was found that their wrist watches had stopped shortly after 2:30 a.m., and that death had been caused by drowning. Both men lived in Baton Rouge, worked as salesmen-collectors for the same mercantile company, and were often together on business and pleasure; but their whereabouts between 5:30 p.m. the previous day and the time of the accident is unexplained and unknown. The Airline Highway then consisted of only two concrete lanes, one for northbound and one for southbound traffic, but preparations were underway to construct two additional lanes destined to handle southbound vehicles and dirt for that project had been dumped alongside the west side of the highway for the roadbed base. Some rain had fallen that night and the dirt shoulders were soft and muddy. There were no witnesses to the accident, but tire tracks at the scene showed that Swilley's car, traveling toward New Orleans, had run off the concrete onto the west (its right hand) shoulder, had traveled southward along that shoulder for a distance of 118 feet, both wheels being off the highway; had got back on the concrete an at a 45 angle had proceeded to the opposite side and onto the other shoulder--from which it had apparently flipped over into the canal, its front end pointing back toward the highway.

Counsel for defendant argue here that the ruling of the lower courts--i.e., the mere fact of the car leaving the highway while under the complete dominion and control of defendant's assured created a prima facie case for plaintiffs and, under the rule 'res ipsa loquitur,' shifted to defendant the burden of proving its insured free of negligence--points up an irreconcilable conflict among two lines of Louisiana cases, and that the weight of better authority holds the doctrine inapplicable in guest passenger cases where, as here, the accident could have been caused by the fault of a third party. Plaintiffs' counsel, on the other hand, submitting that the lower courts correctly found from the facts that Swilley was the driver of the car,³ contend that an automobile carefully operated will, under ordinary circumstances, remain on the traveled portion of the highway, and that when a car is found to have followed the pattern here shown the inference may be drawn of negligent operation.

A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of neglignece; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is with the plaintiff. All that is meant by res ipsa loquitur is 'that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the...