Rodriguez v. State Farm Mut. Ins. Co.

• Citation: 88 So.2d 432
• Decision Date: 22 November 1955
• Docket Number: 4230,Nos. 4101,s. 4101
• Parties: Mrs. Willie Mae RODRIGUEZ, Plaintiff-Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 432

88 So.2d 432

Mrs. Willie Mae RODRIGUEZ, Plaintiff-Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.

Nos. 4101, 4230.

Court of Appeal of Louisiana, First Circuit.

Nov. 22, 1955.

On Rehearing June 29, 1956.

Writ of Certiorari Denied Sept. 28, 1956.

On Rehearing.

Hynes, Mathews & Lane, Roger Fritchie, Baton Rouge, for appellant.

Kantrow Spaht & West, and R. L. Kleinpeter, Baton Rouge, for appellee.

TATE, Judge.

This personal injury suit especially concerns the extent to which the negligence of the driver of a car owned by plaintiff-passenger can be imputed to the latter in her action against the other driver and the liability insurers of both cars involved. All three defendants were cast in damages in solido and appealed; plaintiff answered the appeal, seeking an increase in the award.

The District Court held that both drivers' negligence caused this accident. The vehicles collided in a blind intersection. Neither party saw the other, sounded the horn, or applied the brakes prior to the collision; both were moved hardly at all by the impact. As indicated below, it is unnecessary to discuss the negligence of defendant Boet, driver of the other car whose front end struck the right side of plaintiff Mrs. Rodriguez's car.

The driver of this latter car was at least contributorily negligent herein in entering the intersection heedlessly and in disregard of the right of way of the Boet vehicle which was aproaching from her right, see LSA-R.S. 32:237, subd. A; Dodd V. Bass, La.App., 76 So.2d 572. Although plaintiff's driver entered the intersection a few feet before defendant Boet did a second later, the right of pre-emption is not accorded a driver who blindly enters an intersection without regard to oncoming traffic and without a reasonable expectation of safely clearing same, Wilson v. Williams, La.App. 1 Cir., 82 So.2d 71; Sonnier v. U. S. Fidelity & Guaranty Co., La.App. 1 Cir., 79 So.2d 635.

It is undisputed that the car in which plaintiff was riding as passenger was owned by her, although driven at the time of the accident by her sister, who intended to drop plaintiff off at the latter's place of business as she did almost every morning; that plaintiff's sister customarily drove plaintiff's car, no matter where they went together; that both plaintiff and her sister recognized plaintiff's ownership of the automobile in question and her right to control its operation.

It is well settled in Louisiana that where the owner, with theoretical right of control over another driving his car, is a passenger therein in an accident when the ride is for his benefit or for the mutual benefit of himself and the driver; then, as to third persons involved in the accident, the negligence of the driver is imputed to the owner as that of an agent, and if a proximate cause of the accident, may either render the owner liable to the third party or constitute contributory negligence barring recovery by the owner from the third party, Waguespack v. Savarese, La.App., 13 So.2d 726; Weitkam v. Johnson, La.App., 5 So.2d 582; Riggs v. Strauss & Son, La.App., 2 So.2d 501; see also Note, 12 La.Law Review 323; Pierrotti v. Huff Truck Lines, La.App. 1 Cir., 63 So.2d 886.

Thus, under the circumstances herein, plaintiff's sister's negligence causing the accident is imputed to plaintiff and bars plaintiff's recovery from the other driver (Boet) and his liability insurer, whether Boet was concurrently negligent or not. The judgment will be amended accordingly.

The remaining defendant, State Farm Mutual Insurance Company, issued a liability policy to plaintiff covering the operation of plaintiff's car in which she was riding as a passenger at the time of the accident. It contained the usual omnibus clause providing that one driving the car with the consent of the named insured was an 'additional insured', likewise protected according to the terms of the policy against liability to others arising from negligent operation of the vehicle. Under this omnibus clause the named insured may recover from his own insurance company damages sustained by him as passenger through the negligence of an 'additional insured' driving the car; McDowell v. National Surety Corp., La.App. 1 Cir., 68 So.2d 189, certiorari denied, La.Sup., Feb. 15, 1954, Id., 347 U.S. 995, 74 S.Ct. 867, 98 L.Ed. 1127, June 7, 1954; Hardtner v. Aetna Casualty & Surety Co., La.App., 189 So. 365, certiorari denied; see also McHenry v. American Employers' Ins. Co., 206 La. 70, 18 So.2d 656.

This is true even though an agency relationship exists between the driver and the owner-passenger, for as stated in the McDowell case, 68 So.2d 189 at page 193:

'As to any damages to third persons, the negligence of the wife would have been imputed to the husband, the principal in the community agency. Thus, he would have had no defense to an action instituted by third persons, under the circumstances of this case. However, in the agency relationship, the law allows the principal to recover from the agent for the damages sustained by the principal as a result of the negligent acts of the agent.' (Italics ours.)

Counsel for State Farm skillfully argues that the above cited cases do not apply because in the case now before us the ownerprincipal (plaintiff) had not relinquished her right of control over the driver-agent and theoretically could have prevented the latter's negligent actions. We do not find this distinction persuasive, since undoubtedly in the cited cases the owner-principal retained the same theoretical right of control. As between the principal and the agent, the legal relationship of the agency is disregarded insofar as charging one with the fault of another; in effect, a driver-agent owes the same duty to a passenger-principal as any other driver owes to any other passenger.

Thus in this case, where although plaintiff-owner may have retained her theoretical right of control she was not actually exercising it, the driver's negligence is not imputed to the owner. Whether plaintiff's recovery is barred herein is determined by her status as a passenger, not as an owner or as a principal; although perhaps the duty of a passenger-owner may be greater than that of a passenger-non-owner in a clearly hazardous situation when the owner has the actual opportunity to exercise his right of control and fails to do so. The negligence of the driver is not imputed to the passenger, Bourg v. Hubble, La.App. 1 Cir., 68 So.2d 639; although of course as there stated, the latter may be guilty of independent negligence contributing to the accident which bars recovery.

But it is well settled that under ordinary circumstances a passenger may rely upon the care and skill of his driver and is under no duty to supervise the driving of the vehicle or to maintain an independent lookout, see authorities cited in White v. State Farm Mutual Automobile Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338. Thus, in the present circumstances, plaintiff was entitled to rely upon her driver's lookout and care, and we fail to find any independent or contributory negligence on plaintiff's part in her so doing. Prior to the driver's heedless entry into the intersection, her manner of driving was not so clearly negligent as to alert the passenger-owner to the necessity of remonstrance or of exercise of the right of control.

In Horn v. Barras, La.App. 1 Cir., 172 So. 451, the driver had driven during a heavy rainstorm restricting visibility to 20 feet ahead, at a speed of 30 to 45 mph--i. e., 43.8 to 65.7 feet per second--continuously for 5 miles. The owner-passenger's failure during that journey to exercise his right of control to remonstrate at or to moderate the speed, was held independent negligence barring recovery against the driver of another vehicle, because the owner-passenger could observe the restricted visibility, the too-rapid speed, and by implication because he had the opportunity to exercise his right of control and failed to do so. This is not the situation presently before us.

This 54-year old lady sustained very painful injuries, bruises to her hip, shoulder and chest, a broken collar bone, a right ankle sprain, right thumb tendon and hand injuries; was hospitalized ten days; spent six weeks in a cast; was unable at date of trial eight months after the accident, due to residual stiffness and pain of right shoulder and hand, to place her right hand behind her or raise it over her head. An orthopedic expert estimated potential permanent disability of 10% of the shoulder, not serious enough to bar her employment, but possibly producing awkwardness or pain in extreme movements of the affected members. The award by the District Court of $7,500 for mental and physical pain and suffering and permanent disability was neither manifestly insufficient or excessive and will not be disturbed.

Similarly, in view of the lack of specific evidence concerning plaintiff's allegedly greater earnings in the year preceding the accident, we find reasonable the District Court's award to her of lost earnings during her several months' total disability at the rate of $25 per week, the salary she earned when she returned to her first employment after the accident and also that she was earning at the time of trial.

The special damages for medical treatment are undisputed.

For the reasons assigned the trial court's judgment is affirmed in favor of plaintiff against State Farm Mutual Automobile Insurance Company in the sum of $8,335 together with legal interest thereon at the legal rate from date of judicial demand until paid, said defendant to pay all costs of these proceedings and of this appeal; but is amended to dismiss plaintiff's suit against Dexter Jose Boet, and The Franklin National Insurance Company (Boet's liability insurer).

Amended: and affirmed as amended.

ELLIS, Judge (dissenting).

I have no quarrel with the facts as found by the majority opinion, but only with...