Ory v. Travelers Ins. Co.

• Decision Date: 04 May 1970
• Docket Number: Nos. 3946,3947,s. 3946
• Citation: 235 So.2d 212
• Parties: O. J. ORY, Jr. v. The TRAVELERS INSURANCE COMPANY, Sheila Synder Falterman and William Stallings. Sheila SYNDER, Wife of/and Enoch J. FALTERMAN, Jr., and Evelina Madere Lemoine v. The TRAVELERS INSURANCE COMPANY and William C. Stallings.
• Court: Court of Appeal of Louisiana — District of US

Page 212

235 So.2d 212

O. J. ORY, Jr. v. The TRAVELERS INSURANCE COMPANY, Sheila Synder Falterman and William Stallings.

Sheila SYNDER, Wife of/and Enoch J. FALTERMAN, Jr., and Evelina Madere Lemoine v. The TRAVELERS INSURANCE COMPANY and William C. Stallings.

Nos. 3946, 3947.

Court of Appeal of Louisiana, Fourth Circuit.

May 4, 1970.

Becnel & Kliebert, Thomas J. Kliebert, Gramercy, for O. J. Ory, Jr., plaintiff-appellee.

Taylor, Porter, Brooks & Phillips, John S. Campbell, Jr., Baton Rouge, for The Travelers Ins. Co. and William C. Stallings, defendants and third-party plaintiffs-appellants.

Norman L. Sisson, Robert J. Jones, Robert L. Roshto, Baton Rouge, for Department of Highways, State of Louisiana, third-party defendant-appellee.

Before CHASEZ, BARNETTE and DOMENGEAUX, JJ.

BARNETTE, Judge.

These consolidated cases arise out of an intersectional automobile collision involving three automobiles. Two of the automobiles first collided, and the force of the impact caused both vehicles to be thrown out of control and both to collide with the third car which arrived at the intersection at or near the moment of the first impact. The personal injury claims are minimal but there was substantial damage to the automobiles. It is that damage and the issues of negligence and proximate cause with which these appeals are primarily concerned.

The collision giving rise to these suits occurred on July 29, 1967, in the Parish of St. John near the Town of Laplace. At the point in question, two blacktop highways, identified by State Highway numbers and in part by street names, intersect at right angles. We will not use the reference to highway numbers and names to avoid confusion and will refer to them by direction. They run respectively in an approximate north-south and east-west direction. The highways are of approximately the same width but the grade of the north-south road is at a slightly higher elevation than the east-west roadway.

The north-south highway is designated as the dominant road and the intersections are supposed to be marked with appropriate stop signs. The intersection in question had been so marked with stop signs facing the traffic on the east-west roadway, thus giving the north-south road the right-of-way, but for some reason not known the stop signs on both sides of the highway were lying facedown in the grass.

William C. Stallings, a defendant in both suits, was driving his company-owned automobile insured by defendant The Travelers Insurance Company in an easterly direction approaching the intersection of the north-south highway at a lawful speed. About 50 yards back from the intersection there was a highway sign indicating a junction with the numbered highway. There were no other visible traffic signs. After he entered the intersection without stopping, his automobile was struck on the left side toward the rear portion of the car by an automobile moving south on the north-south highway, being driven by Sheila Synder, wife of Enoch J. Falterman. Mrs. Falterman is a plaintiff in one of the suits.

Simultaneously there was approaching the intersection from the south, moving north, a Pontiac automobile driven by Miss Linda Ory, a minor. The impact caused both the Stallings Ford and the Falterman Chevrolet to go out of control and both struck the Ory Pontiac.

In the first numbered suit the plaintiff is Dr. O. J. Ory, Jr., father of the minor. Linda Ory, seeking damages individually for total destruction of his Pontiac automobile and other incidental costs, and on behalf of the minor, damages for personal injuries alleged to have been sustained by her. Named defendant in that suit is The Travelers Insurance Company, the public liability insurer of Georgia Pacific Plywood Company, Stallings' employer and owner of the Ford automobile. Stallings is not specifically named as a defendant in that suit, though he appears in the answer and third-party petition with Travelers.

Travelers and Stallings denied the allegations of negligence and affirmatively pleaded contributory negligence of Miss Ory. By third-party petition they alleged the joint and concurrent negligence of Mrs. Falterman and the Louisiana Department of Highways for permitting the stop signs to be destroyed and not maintained properly and, alternatively, seek recovery of contribution from them as joint tort-feasors in the event they are cast in judgment to plaintiff Ory.

In the second numbered suit, the plaintiffs are Sheila Synder, wife of Enoch, J. Falterman; Mr. Falterman, individually for the community loss of the Chevrolet automobile and certain incidental expenses, and on behalf of his minor child, Michelle Falterman, for alleged personal injuries; and Evelina Madere Lemoine, a passenger in the Falterman automobile who seeks damages for alleged injuries sustained. Named as defendants in that suit are The Travelers Insurance Company (erroneously named in plaintiff's petition as The Travelers Indemnity Company) and Stallings.

Travelers' and Stallings' answer in that suit is substantially as in the Ory suit. They deny negligence and allege contributory negligence. They alternatively seek by third-party petition, as in the Ory suit, contribution from Sheila and Enoch J. Falterman, Jr., Dr. O. J. Ory, Jr., and the Louisiana Department of Highways.

In both suits the Department of Highways filed an exception of immunity. The exceptions were maintained and the Highway Department was dismissed from the suits. In maintaining the exceptions, the trial judge took appropriate notice of the then unsettled jurisprudence on the question of the Highway Department's immunity and followed the latest decisions of this court which were then pending hearing in the Supreme Court on writs of certiorari. The question has now been resolved against immunity and it is conceded that the judgments maintaining the exceptions must now be reversed. Bazanac v. State, Department of Highways, La., 231 So.2d 373 (1970); Picou (Compass) v State, Department of Highways, La., 231 So.2d 374 (1970); Herrin v. Perry, 254 La. 933, 228 So.2d 649 (1969).

In the Ory suit, judgment was rendered against The Travelers Insurance Company in favor of the plaintiff Dr. Ory in the stipulated amount of damage to his Pontiac automobile in the sum of $2,020, plus $131.50 incidental expenses, and in his favor on behalf of his minor daughter in the sum of $200. The defendants Travelers and Stallings appealed both from this judgment and the judgment dismissing the State Department of Highways.

In the other suit there was judgment against Stallings and Travelers in favor of plaintiffs Sheila Synder (Mrs. Falterman) for $100, Evelina Madere Lemoine in the sum of $128, and Enoch J. Falterman, Jr., in the amount of $336. The defendants Travelers and Stallings appealed from this judgment and also from the judgment dismissing the Highway Department.

From the testimony we must conclude that Linda Ory was free from fault. Except for the collision, Stallings would safely have cleared the intersection in front of Miss Ory. The damage to Dr. Ory's Pontiac was admitted and it was stipulated that his loss was $2,020 plus $131.50 for incidental expenses. Linda Ory's personal injuries were minimal, consisting of a minor whiplash which cleared up within 20 days. The award of $200 for her is not contested. Since the Ory suit is directed against Travelers only, the judgment can be maintained only if we find that Stallings, Travelers' insured, was guilty of negligence constituting a proximate cause of the accident.

The defendant Stallings was a stranger in the community and had never before traveled the highways in question. There was nothing in the appearance of the two highways to alert a stranger to their relative importance so that he could be charged with knowledge that one had the right-of-way over the other. Since the stop signs were down, Stallings approached the intersection as one not controlled.

On the other hand both Mrs. Falterman and Miss Ory were residents of the community and frequently traversed the point in question. They knew that the north-south road was the dominant one and had the right-of-way by highway regulation. Neither of them knew that the stop signs were down at that intersection.

The defendants Stallings and Travelers rely upon the provisions of the Louisiana Highway Regulatory Act, Sub-Part D on 'Right of Way' which provide in pertinent parts:

LSA-R.S. 32:121:

'B. When two vehicles enter an...