Poche v. Frazier

• Decision Date: 09 March 1970
• Docket Number: Nos. 3769--71,s. 3769--71
• Citation: Poche v. Frazier, 232 So.2d 851, 256 La. 266 (La. App. 1970)
• Parties: Eugene J. POCHE, Jr., et al. v. Bobby FRAZIER et al. Alton ANDERSON et al. v. Bobby FRAZIER et al. Richard Lee HAUSCHILD et al. v. Bobby FRAZIER et al.
• Court: Court of Appeal of Louisiana

Page 851

232 So.2d 851

Eugene J. POCHE, Jr., et al. v.Bobby FRAZIER et al.

Alton ANDERSON et al. v.Bobby FRAZIER et al.

Richard Lee HAUSCHILD et al. v.Bobby FRAZIER et al.

Nos. 3769--71.

Court of Appeal of Louisiana, Fourth Circuit.

March 9, 1970.

Rehearing Denied April 6, 1970.

Harry Nowalsky, New Orleans, Norman J. Pitre, Luling, for plaintiffs-appellees.

Alexander C. Cocke, Jr., Bryan, Caraway, Schaefer & Cocke, New Orleans, and Ralph R. Miller, Norco, for defendants-appellants, Main Mutual Insurance Co. and Claude J. Landry.

C. B. Ogden, II, New Orleans, George Oubre, Norco, for defendants-appellants, Fremin-Smith Services, Inc., and Hartford Accident and Indemnity Co.

Francis G. Weller of Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appelleeAmerican Casualty Insurance Co.

Before SAMUEL, CHASEZ and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

These three consolidated cases involve tort claims arising out of two automobile accidents which occurred on November 20, 1965, at approximately 5:10 p.m., on or near the Bonnet Carre Spillway Bridge on U.S. Highway 61 just west of New Orleans in St. Charles Parish.Highway 61 at that point is a four lane highway running northwest and southeast.There are two lanes running in each direction.The flow of traffic in opposite directions is divided by a double yellow line.This physical layout is also true of the Bonnet Carre Spillway Bridge, except that the highway on the bridge is bounded on both sides by a concrete abutment.A pickup truck owned by Louis Carmouche and being operated by Claude Landry was traveling on the said highway in a southeasterly direction in the right or outside lane of traffic.Just before entering the bridge the truck collided with an automobile being driven by Bobby Frazier in the same direction, but in the left or inside lane.The impact caused the Frazier automobile to cross the double yellow line into the left inside lane of the northwest bound traffic.This produced a headon collision between the Frazier vehicle and an automobile being driven in a northwesterly direction by Eugene Poche, Jr., in his left or inside lane of traffic.Mrs. Poche, Mr. and Mrs. Alton Anderson, and Mr. and Mrs. Richard Hauschild were passengers in the Poche vehicle.A fourth automobile being driven by Lorraine Braud Zeringue in the same direction and lane as the Poche vehicle crashed into the back of the Poche automobile immediately following its collision with the Frazier automobile.

The Andersons and Hauschilds filed separate actions for their injuries, charging negligence to Bobby Frazier and his alleged liability insurer, Travelers Protective Insurance Company; Claude Landry and Louis Carmouche, the latter who was the owner of the vehicle operated by Landry, and Main Mutual Insurance Company, the liability insurer of the Carmouche truck; Alvin Fremin and Henry Smith, d/b/a Fremin-Smith Services (properly-Fremin-Smith Services, Inc.) and its liability insurer, Hartford Accident and Indemnity Company, alleging Fremin-Smith Services, Inc., was the employer of Claude Landry at the time of the accident; Lorraine Braud, individually, and Eugene Poche, Jr., and his liability insurer, American Casualty Insurance Company.

The Poches filed suit against Frazier, Travelers Protective Insurance Company, Claude Landry, Louis Carmouche, Main Mutual Insurance Company, Fremin-Smith Services, Inc., Hartford Accident and Indemnity Company and Lorraine Braud.

State Block, Inc., owner of the Poche vehicle, filed suit against the above named persons per property damage to that vehicle.

In the Anderson and Hauschild matters American Casualty Insurance Company, by third party proceedings, brought action against Frazier, Travelers Protective Insurance Company, Claude Landry, Louis Carmouche, Main Mutual Insurance Company, Fremin-Smith Services, Inc ., Hartford Accident and Indemnity Company and Lorraine Braud.

All actions were consolidated and tried before a jury in the Twenty-Ninth Judicial District Court on July 29--August 2, 1968.

After the trial the jury found, on special interrogatories directed to them, that:

1.Bobby Frazier was negligent and his negligence was the proximate cause of the accident.

2.Claude Landry was negligent and his negligence was the proximate cause of the accident.

3.Lorraine Braud was negligent but her negligence was not the proximate cause of the accident.

4.Eugene Poche was not negligent.

5.Louis Carmouche had not leased his truck to Fremin-Smith.

6.Claude Landry was an employee of Fremin-Smith Services, Inc., at the time of the accident.

7.Bobby Frazier was not afforded liability insurance coverage through Travelers Protective Insurance Company.

8.Eugene Poche was entitled to $75,000.00 for injuries and permanent disability and $10,000.00 for past and future medical expenses for him and his wife.

9.Miriam Poche was entitled to $75,000.00 for injuries and permanent disability.

10.State Block, Inc., was entitled to $3,300.00 property damage.

11.Alton Anderson was entitled to $50,000.00 for injuries and permanent disability and medical expenses of $15,000.00 past and future for him and his wife.

12.Hazel Anderson was entitled to $20,000.00 for injuries and permanent disability.

13.Richard Hauschild was entitled to $5,000.00 for injuries and permanent disability and medical expenses of $15,000.00 past and future for him and his wife.

14.Connie Hauschild was entitled to $75,000.00 for injuries and permanent disability.

After the trial, but before the matter was submitted to the jury and before argument of counsel, Fremin-Smith Services, Inc., and Hartford Accident and Indemnity Company filed exceptions of no right or cause of action based upon the testimony that Claude Landry was not an employee of Fremin-Smith Services, Inc., and, therefore, Fremin-Smith Services, Inc., could not be held responsible for his acts of negligence, if any.The exceptions were overruled by the trial judge.

At approximately the same point in the proceeding, that is, after the close of the testimony but before the matter was argued or submitted to the jury, defense attorneys asserted that there was newly discovered evidence pertinent to the trial.Motion was made to reopen the case to hear the testimony of a new witness, one Jenny Jones.The court refused to reopen the case but allowed interested defense attorneys, by proffer, to relate into the record substantially what would have been Miss Jones' testimony.

The trial judge thereafter rendered judgment in accordance with the jury's verdict and cast Bobby Frazier, Claude Landry, Fremin-Smith Services, Inc., Hartford Accident and Indemnity Company to the limits of its policy and Main Mutual Insurance Company to the limits of its policy, jointly, severally and in solido.

There was further judgment dismissing plaintiff's demands against Lorraine Braud, Louis Carmouche and Travelers Protective Insurance Company and American Casualty Insurance Company, dismissing plaintiffs' right to proceed against American Casualty Insurance Company under the uninsured motorist's clause, and dismissing American Casualty Insurance Company's third party demand against Bobby Frazier, Louis Carmouche, Claude Landry, Fremin-Smith Services, Inc., and Lorraine Braud.

Thereafter counsel for Fremin-Smith Services, Inc., and Hartford Accident and Indemnity Company, joined by counsel for Claude Landry and Main Mutual Insurance Company, moved for a new trial and alternatively for a remittitur.These motions were denied by the trial judge.

In due course suspensive appeals were lodged for Fremin-Smith Services, Inc., and Hartford Accident and Indemnity Company along with Claude Landry and Main Mutual Insurance Company.Bobby Frazier and Lorraine Braud did not appeal.Plaintiffs have each answered the appeals seeking an increase in the awards.

The first question to be decided by this court is whether the trial judge erred in denying the defendant's motion to reopen the case in order to hear the testimony of Miss Jones.The decision to reopen a case for the production of additional evidence after all parties have rested is one which is within the sound discretion of the trial court and unless manifestly erroneous will not be disturbed on appeal.LSA-C.C.P. art. 1632;Dupre v. Hartford Accident & Indemnity Company, La.App., 200 So.2d 753;Nalty v. Nalty, 222 La. 911, 64 So.2d 216;Succession of Lefort, 139 La. 51, 71 So. 215.The accident in question occurred on November 20, 1965 and Miss Jones was not mentioned as a witness until August 2, 1968, the last day of the trial.Counsel for the defense stated that they did not learn that Miss Jones had seen the accident until that morning yet, as the trial judge states in denying the motion, Miss Jones had in all probability been a resident of Norco for the thirty-two months that intervened between the accident and the trial, and in fact resided but a short distance from the office of one of the defense attorneys.While we are not prepared to say that the defendants failed to exercise due diligence in finding their witness, we cannot assert with such certainty as would be required to justify overruling the decision of the trial judge, that they did exercise such diligence.Furthermore our reading of the proffer of what Miss Jones' testimony would be indicates to us no reasonable basis for altering the conclusions that we reach in these cases.We are therefore unable to say that the trial judge abused his discretion in denying Miss Jones the opportunity to testify.

Appellants also urge the finding of the jury that both Landry and Frazier were negligent as grounds for reversal.Frazier has not appealed and we are therefore concerned only with the finding of negligence on the part of Landry.Appellants argue that Landry and Frazier could not, in view of the nature of the accident and the testimony adduced at trial, both be negligent.It is their contention that only one was...