Skinner v. Scott

• Decision Date: 14 December 1959
• Docket Number: No. 44033,44033
• Citation: 238 La. 868,116 So.2d 696
• Parties: W. Herman SKINNER v. Charlie SCOTT et al.
• Court: Louisiana Supreme Court

Page 696

116 So.2d 696

238 La. 868

W. Herman SKINNER v. Charlie SCOTT et al.

No. 44033.

Supreme Court of Louisiana.

Dec. 14, 1959.

Rehearing Denied Jan. 11, 1960.

Bodenheimer, Looney & Richie, G. M. Bodenheimer, Jr., Shreveport, for defendants-appellants.

Pickett & Pickett, Many, for plaintiff-appellee.

HAMLIN, Justice.

Defendants appeal from a judgment of the trial court awarding plaintiff $1,745.94, property damages sustained in a collision between plaintiff's 1955 Chevrolet truck, driven by his employee, Chester Carhee, and the GMC truck of the defendant Charlie Scott, driven by his employee, Henry Sheppard. Plaintiff has answered the appeal, praying for an increase in the award.

We have carefully reviewed the record and we agree with the trial judge's findings of facts, which are affirmed in the case of Carhee v. Scott, La.App., 104 So.2d 236, 237,¹ a personal injury action instituted by the driver of plaintiff's truck. We conclude that in Carhee v. Scott, supra, the Court of Appeal² was correct in the following statement of its convictions, which is applicable to our finding of negligence on the part of defendants in the instant case:

'We are convinced from our own review of the record, as was the trial court, that the accident was brought about by the fact that defendants' truck was being operated on the wrong side of the road and in the path and lane of travel of plaintiff's truck, a portion of the highway, by statute and the rules of the road, reserved exclusively for traffic proceeding in a direction opposite to that in which defendant was traveling. From the established facts the conclusion is inescapable that defendants have failed to sustain their burden of proof that their driver's act was not the proximate cause of the accident or there were justifiable circumstances which excused his conduct. * * *' See, LSA-R.S. 32:232; Rizley v. Cutrer, 232 La. 655, 95 So.2d 139; LeJeune v. State Farm Mutual Automobile Insurance Co., La.App., 107 So.2d 509; Bond v. Spillers, La.App., 107 So.2d 706; Soileau v. Manuel, La.App., 109 So.2d 502; Toney v. Pope, La.App., 110 So.2d 226.

In petition, plaintiff alleged that his truck was damaged beyond repair, being a total loss, and that because of the accident he was deprived of its use for eighty-one days. He itemized his damages as follows:

                "(a)  Loss of truck and body ........... $4,734.18
                "(b)  Loss of earnings because of
                      inability to replace said truck
                      for a period of eighty-one
                      working days ..................... $3,240.00"
                

Resolute Insurance Company, plaintiff's insurance carrier, intervened, alleging:

'That pursuant to the provisions of the said policy of insurance intervenor, subsequent to the accident complained of in plaintiff's petition herein, made settlement with W. Herman Skinner for the loss of the truck as being a total loss and on the following basis, to-wit:

                "1.  Actual cost value total loss .... $2,363.60
                "2.  Loss deductible in policy ....... $  100.00
                "3.  Total amount to be adjusted ..... $2,263.60
                "4.  Less value realized from
                     salvage ......................... $  501.00
                "5.  Total loss to intervenor under
                     its policy and because of
                     this accident ................... $1,762.60"
                

It prayed for a judgment of $1,762.60 against plaintiff, W. Herman Skinner. The trial court dismissed the intervention as of non-suit, being of the opinion that it was not timely filed and would retard the progress of the suit.³ Louisiana Code of Practice, Article 391.

There is no evidence of record to show the value of the truck just prior to the accident. Plaintiff testified that the truck was in perfect condition insofar as he knew. He said that it was six months old and in good repair. He stated that the truck was a total loss after the accident, and that he had it delivered to the wreck yard of the dealership from which it was purchased. He testified that his insurer paid him $1,726, and that he gave the company a release, this action occurring three months after the accident. He further stated that he paid his bank note for the purchase of the truck with the insurance money and an additional sum of approximately $196.

The evidence of record shows that plaintiff purchased the truck herein involved on November 18, 1955, for a consideration of $4,734.18. This amount included the customary charges. He paid $1,226.58 in cash, and $3,507.60 was to be paid in twenty-four monthly installments of $146.15 each.

On August 3, 1956, Stubblefield Chevrolet Company submitted to plaintiff an itemized estimate of the cost of repairing his truck, totalling $1,745.94 (the amount of the award to plaintiff by the trial judge) which included Labor, $378.50; Parts, $1,303.20; Material, $30; and Sales Tax, $34.24. Mr. Gordon Russell, Sales Manager and Parts Manager for Stubblefield Chevrolet Company, testified that even though he made the estimate, which included replacement of parts, the truck was beyond repair.

In the absence of testimony as to the...