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

Decision Date02 June 1965
Docket NumberNo. 1409,1409
PartiesMrs. Lora M. MAHAFFEY, Plaintiff and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee, Charles R. Frensley, Defendant and Appellant.
CourtCourt of Appeal of Louisiana — District of US

Jeron J. LaFargue, Sulphur, for defendant-appellant.

Kaufman, Anderson, Leithead, Scott & Boudreau, by Everett R. Scott, Jr., Lake Charles, for plaintiff-appellee-appellant.

Stockwell, St. Dizier, Sievert & Viccellio, by Fred H. Sievert, Jr., Lake Charles, for defendant-appellee-appellant.

Before FRUGE , HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries sustained in an intersectional collision. Defendants are Charles R. Frensley, employer of the driver of the other vehicle, and State Farm Mutual Automobile Insurance Company, the alleged liability insurer of the Frensley vehicle. After a trial on the merits, the district judge held Frensley liable for his employee's negligence, but sustained a coverage defense urged by the insurer. The defendant, Frensley, appealed. Plaintiff also appealed seeking an increase in the award and reversal of that part of the judgment dismissing the insurer. The insurer answered the appeal, asking that in the event it be held liable, plaintiff's demands be rejected and, alternatively, that the quantum be reduced.

The issues are (1) negligence of Frensley's driver, (2) contributory negligence of plaintiff, (3) insurance coverage and (4) quantum.

We will first address ourselves to the issue of negligence. The accident occurred on February 6, 1962 at about 5:00 p.m. at the intersection of Hodges and Seventeenth Streets in the City of Lake Charles. Plaintiff was going north on Hodges Street, which has the right of way, at a speed of about 30 miles per hour, approaching the intersection. The Frensley vehicle was going west on Seventeenth Street. Traffic on Seventeenth Street is controlled by a stop sign, establishing Hodges as the favored street. The driver of the Frensley vehicle testified he stopped at the stop sign; looked, but did not see any vehicles approaching from either direction; then proceeded only 8 or 10 feet into the intersection where the impact occurred. The left front of the Frensley's vehicle struck the right front of plaintiff's automobile in the northeast quadrant of the intersection.

It is abundantly clear that the driver of the Frensley vehicle was negligent. A motorist must not only stop in obedience to a stop sign, but he is required to see approaching vehicles, which he should see, on the favored street and to yield to them the right of way. Howard v. Insurance Company of North America, La.App., 162 So.2d 165 (3rd Cir. 1964). The Frensley driver was clearly negligent in not seeing and yielding the right of way to plaintiff's vehicle, which was approaching at a reasonable speed and was clearly visible.

Defendants argue alternatively that Mrs. Mahaffey was contributorily negligent in failing to keep a proper lookout. Essentially, this argument is that Mrs. Mahaffey had the last clear chance to avoid the accident, i.e., that she saw or should have seen the Frensley vehicle, negligently entering the intersection, in time to avoid the collision.

The applicable rule of law is that the motorist, knowingly on the favored street, has the right to assume that any driver approaching the intersection on the less favored street will yield the right of way; and such favored motorist can indulge in this assumption until he sees or should see that the other driver is not going to obey the law. Hilton v. Bankers Fire & Marine Insurance Company, La.App., 134 So.2d 82 (3rd Cir. 1961); Benoit v. Vincent, La.App., 132 So.2d 75 (3rd Cir. 1961). Here, Mrs. Mahaffey testified she knew she had the right of way; was looking straight ahead; didn't see the Frensley vehicle until just before it struck her; and that when she first saw it, it was moving. Even assuming, as defendants contend, that the Frensley vehicle was stopped at the sign; and assuming that Mrs. Mahaffey should have seen it there; it is obvious that by the time the Frensley vehicle moved off from the stop sign, Mrs. Mahaffey was so close she did not have time to avoid the collision. It is our conclusion that Mrs. Mahaffey was not contributorily negligent.

The next issue is the insurer's coverage defense. The relevant facts show that Frensley is in the laundry and dry cleaning business. At one time he operated at least 7 delivery vehicles, which were insured with the defendant, State Farm Mutual Automobile Insurance Company, under a fleet policy. Such a policy is available to persons operating 5 or more vehicles. In 1961, 3 of Frensley's vehicles became inoperable, leaving only 4 in running condition. On November 10, 1961, the fleet policy was canceled and separate policies were issued on the 4 vehicles in operation.

A few days before the accident on February 6, 1962, 2 of these 4 vehicles were 'laid up' for repairs, leaving only 2 in running condition. Frensley decided he could quickly put another vehicle in operation by installing a new motor in the 'shell' of a 1958 Volkswagen panel truck, which was one of the three vehicles that became inoperable in 1961, and was still owned by him and had been stored at McGee Motors in Lake Charles. He advised Mr. Vincent, agent for State Farm, of this plan and told him that when the new motor was installed he would call Vincent and have one of the 4 insurance policies changed to cover this 1958 Volkswagen as the described vehicle.

The new motor was installed on the morning of Saturday,...

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