Powell v. Continental Ins. Co.

• Decision Date: 01 July 1968
• Docket Number: No. 7433,7433
• Citation: 212 So.2d 739
• Parties: Charles Ray POWELL and Alton F. Powell v. CONTINENTAL INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 739

212 So.2d 739

Charles Ray POWELL and Alton F. Powell v. CONTINENTAL INSURANCE COMPANY et al.

No. 7433.

Court of Appeal of Louisiana, First Circuit.

July 1, 1968.

Patsy Jo McDowell, Arthur Cobb, Baton Rouge, for appellant.

Paul H. Due of Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for appellee.

Before LANDRY, REID and BAILES, JJ.

REID, Judge.

This is a suit for damages arising out of accident involving an automobile owned and operated by plaintiff Charles Ray Powell accompanied by his brother, Alton F. Powell, another plaintiff. The accident happened at about 4:50 P.M. on September 17, 1966 about one-half mile south of Baywood, Louisiana on Louisiana Highway No. 37.

Suit was originally filed by Charles Ray Powell who sought judgment in the amount of $52,250.00 with interest and costs.

By supplemental and amended petition Charles Ray Powell and Alton F. Powell amended the original petition by alleging that Alton F. Powell was a guest passenger in the automobile being driven by Charles Ray Powell and he sought damages in the amount of $21,100.00 and the original plaintiff still sought $52,250.00. Made defendants in this suit were Allen Hasty, driver of the gravel truck involved in the accident, Continental Insurance Company, and Hartford Accident and Indemnity Company, alleged insurers of the gravel truck.

Hartford Accident and Indemnity Company filed an answer denying all the allegations of plaintiffs' petition. The other defendants, Continental Insurance Company and Allen Hasty filed an answer admitting the accident and further admitting that on the date of the alleged accident Continental Insurance Company had issued a policy of liability insurance to Delta Rentals, incorporated, insuring among other things the drivers of the trucks owned by Delta Rentals, Incorporated. They denied any liability, and in the alternative plead contributory negligence on the part of the plaintiffs in failing to keep a proper lookout, not having his automobile under proper control and in driving at an excessive rate of speed under the conditions of the time of the accident, in failing to give adequate signal of his intention to pass the truck, and in operating his automobile in a reckless and careless manner without due regard for the conditions existing on the highway at the time of the accident. They further answered to the amended and supplemental petition reiterating the allegations made in their original answer and further answered alleging the contributory negligence on the part of Charles Ray Powell and that the same was imputable and imputed to the plaintiff Alton F. Powell.

The matter was tried and submitted on the issue of liability only and the Lower Court rendered judgment in favor of the defendants, Continental Insurance Company and Allen Hasty and against Charles Ray Powell and Alton F. Powell rejecting both plaintiffs' demands and dismissing this suit at their costs. From this judgment the plaintiffs have appealed to this Court.

The facts show that plaintiff Charles Ray Powell accompanied by his brother, Alton F. Powell, were driving north on the Greenwell Springs Road going home from the trip to Baton Rouge. They had been following a large gravel truck driven by defendant Allen Hasty for some seven or eight miles and finally came to a stretch of road which could be seen for about a quarter of a mile and they thought they had a chance to pass the gravel truck. As they got almost up to the gravel truck the Powells lost control of the car and it swerved to the left striking the railing of a bridge resulting in the injuries complained of by the two plaintiffs.

There is a conflict in the testimony as to whether the gravel truck struck the Powell car or not. Charles Ray Powell testified that he did not know whether the truck struck him or not. Alton F. Powell, however, testified that the gravel truck did strike the Powell car and that it came across the white line in the middle of the highway.

Defendant Allen Hasty said that he did not get across the white line in the middle of the highway and that after the accident he went on to a filling station and called and notified the police and called for an ambulance. He then returned to the scene of the accident. He testified that there were no marks or any sign of any contact between his truck and the car. In addition State Trooper Joseph Salard testified that he investigated the accident and could find no physical evidence indicating the occurrence of any impact or collision between the truck and the automobile. He further testified that there was extensive damage to the Powell vehicle but no foreign paint from another vehicle on the car itself. Trooper Salard also testified that he interviewed the driver, Charles Ray Powell, at the Baton Rouge General Hospital, and Powell told him that he attempted to pass the gravel truck and had an accident. He did not say anything whatsoever about the gravel truck having crossed the center line of the highway and said nothing to the Trooper to the effect that the truck caused or contributed to the accident.

In addition Mr. Peebles Grisson, owner or co-owner of the truck being driven by Allen Hasty and involved in the accident testified that he saw the truck Monday morning after the accident happened on a Saturday afternoon and he could find no damage or even a scratch on the truck at that time and further that the truck was equipped with mud guards. He further testified that the truck was a 60,000 pounds or a 30 ton truck and that it had 16 wheels rolling.

Mr. Gorman Steele Pounders, a witness testifying on behalf of the defendant stated that he was assistant district engineer in the 61st District of the Louisiana Department of Highways and had been so...