Robertson v. Handy

• Decision Date: 28 December 1977
• Docket Number: No. 11729,11729
• Parties: Albert ROBERTSON, Individually and on Behalf of his minor children, Mary Martha Robertson, et al., and Katherine Robertson Dillon, et al., Plaintiffs and Appellees, v. Inetha HANDY, James Handy, Ben W. Gaylen, William L. Byrd Trucking Co., Employers Mutual Liability Ins. Co. of Wisconsin, Louisiana Department of Highways, Willie H. Jenkins and the City of Bogalusa, Defendants, O. D. Turnage and Continental Insurance Company, Third Party Defendants, Louisiana Department of Highways, Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 626

354 So.2d 626

Albert ROBERTSON, Individually and on Behalf of his minor children, Mary Martha Robertson, et al., and Katherine Robertson Dillon, et al., Plaintiffs and Appellees, v. Inetha HANDY, James Handy, Ben W. Gaylen, William L. Byrd

Trucking Co., Employers Mutual Liability Ins. Co. of

Wisconsin, Louisiana Department of Highways, Willie H.

Jenkins and the City of Bogalusa, Defendants,

O. D. Turnage and Continental Insurance Company, Third Party

Defendants,

Louisiana Department of Highways, Appellants.

No. 11729.

Court of Appeal of Louisiana, First Circuit.

Dec. 28, 1977.

Rehearing Denied Feb. 13, 1978.

Writ Refused March 27, 1978.

France W. Watts, III, of Watts & Cassidy, Franklinton, for plaintiffs and appellees.

Ron S. Macaluso, Hammond, for Louisiana Dept. of Highways.

Louis M. Kiefer, Jr., and R. L. Ronzello, New Orleans, for Employers Mutual Liability Ins. Co. of Wisconsin, William L. Byrd Trucking Co., and Ben W. Gaylen.

Donald M. Fendlason, Dale E. Branch, of Seal, Lee, Branch & Brown, Bogalusa, for the City of Bogalusa.

Charles W. Schmidt, III, of Christovich & Kearney, New Orleans, for Continental Ins. Co. and Q. D. Turnage.

G. Wayne Kuhn, of Johnson & Kuhn, Franklinton, for Q. D. Turnage, Individually.

Before LANDRY, SARTAIN and ELLIS, JJ.

ELLIS, Judge.

This is a suit for damages for the wrongful death of Mary Lee Robertson. Plaintiffs are the husband and 13 children of the decedent. Named as defendants in the original petition were Inetha Handy, operator of the vehicle in which Mrs. Robertson was a guest passenger; James Handy, her husband; Ben W. Gaylen, operator of the tractor-trailer rig involved in the accident; William L. Byrd Trucking Company, owner of the rig; Employers Mutual Liability Insurance Company of Wisconsin, liability insurer of Gaylen and Byrd; the City of Bogalusa; and Willie H. Jenkins, alleged to be the owner of the vehicle operated by Mrs. Handy.

An answer was filed by Employers, which third partied Mr. and Mrs. Handy, the State, and the City. An answer was filed by the State to both the main demand, and Employers' third party demand. In addition the State filed a third party demand against the City of Bogalusa.

The City then filed answers to the main demand, and both third party demands against it, and third partied all of the other defendants. The City also named Q. D. Turnage and Continental Insurance Company as additional third party defendants, but these two parties were subsequently dismissed from the suit.

The record does not reveal that issue was ever joined as to Mr. Handy, Mr. Jenkins, Mr. Gaylen or Byrd, no pleadings having been filed by them or on their behalf to any of the demands made against them, and no preliminary judgment of default appearing in the minutes.

After trial on the merits, judgment was rendered in favor of plaintiffs and against the State of Louisiana, through the Department of Highways, for a total of $195,000.00, being $40,000.00 for the surviving spouse, $15,000.00 for each of the five minor children, and $10,000.00 for each of the eight major children. All other demands were dismissed.

From this judgment, the State has appealed. Plaintiffs have answered the appeal, asking that the City of Bogalusa be cast solidarily with the State; that the award of damages be increased; and that Gaylen, Byrd, and Employers be found solidarily liable with the State and the City. The City has answered the appeal, asking that its third party demand be recognized should it be cast in judgment. An answer to the appeal was also filed on behalf of Gaylen, Byrd and Employers, asking for recognition of Employers' third party demands in the event they should be cast in judgment.

Since plaintiffs did not appeal, their answer to the State's appeal cannot have the effect of placing at issue the judgment below as it applies to the other defendants. Code of Civil Procedure, Article 2133. It is, therefore, not necessary that we consider the third party demands of Employers or the City, both of which are predicated on liability on the main demand.

The only question before us, therefore, is the liability of the State on the main demand, the liability of the City on the State's third party demand against it, and the question of the inadequacy of the award raised by the plaintiffs' answer to the State's appeal.

The accident happened at the intersection of Sunset Drive which is Louisiana State Highway 10, and Homochitto Street, within the limits of the City of Bogalusa. Highway 10 is a hard surface, concrete road, 18 feet in width, with gravel shoulders. In the vicinity of the accident, Highway 10 runs east and west. Immediately adjacent to the paved surface of the road, on the south shoulder, was a rut about four inches in depth and 30 to 50 feet long.

Mr. Gaylen, operating the Byrd tractor-trailer rig, was leaving Bogalusa, heading in a westerly direction on Highway 10. His rig was seven feet, 11 inches in width. Mrs. Handy, operating an automobile with Mrs. Robertson, Mrs. Eulice Pigott and Mrs. Aline Lee as guest passengers, was coming into Bogalusa, heading in an easterly direction on Highway 10. It was raining, the surface of the highway was wet, and the rut was filled with water to the level of the road surface.

Mrs. Handy testified that, as she approached the Byrd truck, it appeared to be slightly in her lane of traffic and she pulled to the right to avoid the truck. As she did so, her wheels went into the rut on the side of the road. Water from the rut splashed onto her windshield, and she lost control of her vehicle, which skidded across the highway and struck the oncoming truck broadside. As a result of the collision, Mrs. Robertson lost her life.

Mr. Gaylen testified that he was entirely within his lane of traffic, driving at 25 or 30 miles per hour, when he saw the right wheels of the Handy vehicle fall off onto the shoulder of the highway, and water splash onto its windshield. He testified that the car continued on the shoulder for about 20 feet, and then came across the road in front of him. He applied his brakes and cut slightly to his right, but was unable to avoid the collision.

The investigating officers determined, from the physical evidence at the scene, that the automobile left the highway 69 feet from the point of impact, remained on the shoulder for about 22 feet and then skidded across the highway and struck the tractor at a point about four feet into the westbound lane.

An eye witness, who was driving immediately behind Mrs. Handy, testified that the tractor-trailer was entirely in its lane of traffic prior to the accident. He saw Mrs. Handy leave the highway, and saw water splash onto her windshield, and witnessed the collision.

From the foregoing testimony, and other testimony, the trial judge found no negligence on the part of Mr. Gaylen, and we find that conclusion to be fully supported by the record. He made no finding relative to the negligence of Mrs. Handy in leaving the highway when there was no apparent reason to do so. We find, on the basis of the trial judge's determination that Mr. Gaylen was entirely in his own lane of traffic, that it was negligence for Mrs. Handy to drive off the traveled portion of the highway. There is, however, no basis for imputing her negligence to Mrs. Robertson, and there is nothing in the record to indicate any contributory negligence or assumption of risk on Mrs. Robertson's part.

We are, therefore, faced with the question of the liability...