Rollins v. New York Fire & Marine Underwriters, Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: SAVOY; The case was tried before the Honorable E. L. Guidry, Sr.; TATE; TATE; MILLER, J., concurs in denial for reasons stated in the original concurring opinion by TATE
• Citation: Rollins v. New York Fire & Marine Underwriters, Inc., 225 So.2d 663 (La. App. 1969)
• Decision Date: 07 August 1969
• Docket Number: No. 2787,2787
• Parties: Marilyn L. ROLLINS, Individually and as Guardian ad Litem of her Minor Children, Lisa C. Rollins and Tish Lorea Rollins, Plaintiff-Appellant, v. NEW YORK FIRE AND MARINE UNDERWRITERS, INC. et al., Defendants-Appellees, Fireman's Fund Insurance Company, Intervenor-Appellant.

Page 663

225 So.2d 663

Marilyn L. ROLLINS, Individually and as Guardian ad Litem of her Minor Children, Lisa C. Rollins and Tish Lorea Rollins, Plaintiff-Appellant, v. NEW YORK FIRE AND MARINE UNDERWRITERS, INC. et al Defendants-Appellees Fireman's Fund Insurance Company, Intervenor-Appellant.

No. 2787.

Court of Appeal of Louisiana, Third Circuit.

Aug. 7, 1969.

Rehearing Denied Aug. 26, 1969.

Davidson, Meaux, Onebane & Donohoe, by Robert L. Cabes, Lafayette, for plaintiff-appellant-appellee.

Lewis & Lewis, by John M. Shaw, Opelousas, for intervenor, appellee-appellant.

Dubuisson & Dubuisson, by James T. Guglielmo, Opelousas, Franklin, Moore, Beychock & Cooper, by Charles W. Franklin, Baton Rouge, for defendant-appellee.

Before TATE, FRUGE and SAVOY, JJ.

SAVOY, Judge.

This is a suit in tort arising out of an automobile accident which occurred at approximately midnight on July 31, 1966, on U.S. Highway 90 in St. Martin Parish Louisiana. The accident involved a head-on collision between a Cadillac automobile owned and being driven by Luther A. Doss, and a Chevrolet pick-up truck, with a house trailer attached, owned and being driven by Carl Ray Rollins. Both drivers died as a result of the accident. This suit was brought by plaintiff, Marilyn L. Rollins, widow of Carl Ray Rollins, individually and as guardian ad litem of the minor children, Lisa C. Rollins and Tish Lorea Rollins. The defendants are the widow and heirs of Luther A. Doss; New York Fire and Marine Underwriters, Inc., the liability insurer of the Doss vehicle; the McCarthy Corporation, the employer of Luther A. Doss; and Commercial Union Insurance Company, the liability insurer of the employer. Fireman's Fund Insurance Company intervened in this action for reimbursement of workmen's compensation insurance benefits as paid and payable to plaintiff as ordered by the Workmen's Compensation Appeals Board of the State of California.

The case was tried before the Honorable E. L. Guidry, Sr., district judge in and for the 16th Judicial District Court. Subsequently, Judge Guidry retired from the bench, and his son, E. L . Guidry, Jr., was appointed to replaced him. By joint motion, this case was submitted to Judge E. L. Guidry, Jr. for decision.

The district court rendered judgment for the plaintiff against the defendants, New York Fire and Marine Underwriters, Inc., Stacia P. Doss, Charles L. Doss, and Linda Doss, in solido, in the amount of $25,200.00, with the liability of New York Fire and Marine Underwriters, Inc. being limited to the sum of $5,200.00; and the liability of the minor, Linda Jo Doss, being limited so as not to exceed her net interest in the estate of her deceased father, Luther A. Doss. Judgment was rendered against plaintiff and in favor of McCarty Corporation and Commercial Union Insurance Company, dismissing plaintiff's suit as against these defendants. Judgment was further rendered in favor of the intervenor, Fireman's Fund Insurance Company, by preference and priority other over plaintiff to the extent of its payment and obligation for payment of workmen's compensation benefits in the amount of $21,700.00. A new trial was granted, limited to the issue of the liability of the Doss heirs, who had accepted the succession of Luther A. Doss. An amended judgment was then rendered making the liability of Stacia P. Doss, Charles L. Doss and Linda Jo Doss joint, rather than in solido, limiting the liability of each on the judgment to their respective interest in the succession, and with the liability of the minor, Linda Jo Doss, in no event to exceed her net interest in the estate of her father.

From this judgment plaintiff and intervenor have filed an appeal. The defendants, Stacia P. Doss, Linda Jo Doss and Charles L. Doss, filed an answer to the appeal.

The issues involved in this case are:

1. Whether or not the sole and proximate cause of the accident was the negligence of Luther A. Doss;

2. Whether or not Luther A. Doss was in the course and scope of his employment with the McCarty Corporation at the time of the accident, so as to impose vicarious liability upon the McCarty Corporation and its insurer; and

3. Quantum.

The record shows that the accident occurred about midnight on July 31, 1966, on U.S. Highway 90 between Broussard and Cade in St. Martin Parish. Carl Ray Rollins was driving a 1965 Chevrolet pick-up truck, with a house trailer attached, in an easterly direction along Highway 90 toward New Iberia. The Rollins truck collided almost head-on with a 1966 Cadillac automobile owned and being driven by Luther A. Doss, who was proceeding westerly along Highway 90 toward Lafayette. The highway in the area involved is straight, but there is a large dip in the road. At the time of the accident, the night was dark the weather was clear, and the highway was dry. The speed limit in the area is 60 miles per hour for automobiles, and 45 miles per hour for trucks.

There were no passengers in the two vehicles involved in the collision, and the two drivers died as a result of the accident. The only other vehicles in the immediate vicinity at the time of the accident was an automobile being driven by George Vidrine, who was proceeding in an easterly direction immediately ahead of the Rollins truck. George Vidrine was subpoenaed to testify at the trial of the case, but could not be found. His testimony had previously been taken by deposition, which was introduced into evidence at the trial, over the objection of counsel for defendants. According to Vidrine, he was traveling easterly on Highway 90, passed the Rollins truck some ten to twelve minutes before the accident, and was proceeding along the highway at a distance of about four or five car lengths ahead of the Rollins truck at the time of the accident. The deponent, George Vidrine, testified he saw the headlights of the Doss vehicle slowly moving into his lane of travel at an angle across the highway, and as the Doss vehicle strayed over the center line of the highway, he turned quickly off the highway onto the shoulder of the road. He testified he just barely avoided a collision with the Doss vehicle himself, that the Doss vehicle was in the wrong lane of travel on the highway as it passed him. Then he heard the crash of the vehicles colliding immediately behind him. He did not see the actual impact as he was concerned with his own safety and was in the process of getting out of the way and off on the shoulder of the road.

The investigating state trooper, Sgt. Charles J. Melancon, testified as to the physical facts as found by him at the scene of the accident. When he arrived, Mr. Rollins was still in the truck, which was in flames, and a firetruck was putting out the fire. Mr. Doss was slumped over his steering wheel and was dead. Both vehicles were heavily damaged, and the major damage to the pick-up truck was to its right front; and the damage to the Cadillac automobile was to its left front. Sgt. Melancon testified that all of the debris left from the vehicles on collision was located on the south side of the highway in the eastbound lane of travel, and that the westbound lane was free of debris. He testified that the collision was so hard there were gouges left in the highway in the pick-up truck's lane of travel. He talked with George Vidrine and saw the markings on the road and shoulder where Vidrine's car ran off the highway to the south side of the road. It was his opinion that the two vehicles met almost head-on in the eastbound lane of traffic.

It was stipulated that the testimony of two other state troopers, who participated in the investigation, would be substantially the same as that of Sgt. Melancon. There is no other evidence in the record concerning the facts of the accident other than the testimony of Sgt. Melancon and the deposition of Mr. Vidrine.

The district court had little difficulty in finding plaintiff had proved by a preponderance of the evidence that the accident in question occurred in the eastbound lane of travel, and that it was caused solely and proximately by the negligence of Luther A. Doss.

The law is well settled that the driver of the vehicle determined to be in the wrong lane of travel is presumed to be negligent, and he had the burden of showing that the collision was not caused by his negligence, or that there were justifiable circumstances excusing his conduct.

The evidence in this case clearly shows that the vehicle of Luther A. Doss crossed the center line of the highway to collide with the Rollins truck in the eastbound lane of travel, and no evidence was offered to justify his presence in the wrong lane of travel. Under these facts and circumstances, this Court concurs with the holding of the district court that the accident herein was caused solely and proximately by the negligence of Luther A. Doss.

The next issue is whether or not Luther A. Doss was in the course and scope of his employment with the McCarty Corporation at the time of the accident. The facts relating to this issue are as follows: Luther A. Doss was a member of the Asbestos Workers Local No. 53 of New Orleans and Baton Rouge, and was classified as a mechanic. The McCarty Corporation is a member of the Master Insulators Association of New Orleans and Baton Rouge, La., Inc. The McCarty Corporation was performing certain insulating work as a subcontractor on a construction job in the City of New Iberia, hereinafter referred to as the 'school job'. On July 29, 1966, Mr. Roy Bourgeois, a union employee, acting as foreman for the McCarty Corporation on the school job, was contacted by Marino and Sons, the contractor on the job, and was advised that they were running behind time and needed to put in some overtime over the weekend in order to beat an impending strike by the pipefitters union. Bourgeois had been working ten men on the McCarty job; however, one employee had just quit. Bourgeois agreed to comply with Marino's request to work overtime...