Smith v. Insurance Co. of State of Pa.

• Decision Date: 02 March 1964
• Docket Number: No. 6068,6068
• Citation: 161 So.2d 903
• Parties: James M. SMITH et al. v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA et al.
• Court: Court of Appeal of Louisiana — District of US

Page 903

161 So.2d 903

James M. SMITH et al. v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA et al.

No. 6068.

Court of Appeal of Louisiana, First Circuit.

March 2, 1964.

Rehearing Denied April 6, 1964.

Durrett, Hardin, Hunter, Dameron & Fritchie, by Calvin E. Hardin, Jr., and Hunt & Covington, by Elayn Hunt, Baton Rouge, for appellant.

Borron, Owen, Borron & Delahaye, by G. T. Owen, Jr., and Horace C. Lane, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

This is one of four actions arising from a single automobile accident and consolidated for trial below. After trial in the lower court separate judgments were rendered in each cause. In the instant matter we shall dispose of those issues common to these consolidated suits including the actions entitled, Martz v. Insurance Company of the State of Pennsylvania, La.App., 161 So.2d 920, Royal Indemnity Company v. Insurance Company of the State of Pennsylvania, and Leach, et al. v. Insurance Company of the State of Pennsylvania, et al., La.App., 161 So.2d 920, Numbers 6069, 6070 and 6071, respectively, on the docket of this court.

The accident occurred shortly after midnight in the early morning hours of Sunday, October 2, 1960, at the intersection of U.S. Highway 61, commonly known as the Baton Rouge-New Orleans 'Airline Highway' and Louisiana Highway 431 locally known as 'Brittany Road', said intersection being situated approximately one mile north of Sorrento, in Ascension Parish. Involved in the accident was a 1960 Valiant being driven in a southerly direction along U.S. 61 by its bailee, Henry A. McBroom, Jr. (who died as a result of injuries sustained in the collision), and a 1960 Buick being driven in a westerly direction on Brittany Road by defendant James R. Poche, minor son of defendant Vernon V. Poche, then State Police Lieutenant in the employ of the State of Louisiana, Department of Public Safety, Division of State Police, (sometimes hereinafter referred to simply as 'the State' or 'the Department'). Liability coverage on the Valiant was carried by defendant State Farm Mutual Insurance Company whose coverage of said vehicle is conceded, but which said concern was released from liability upon the trial court finding the driver of said vehicle, McBroom, was free of negligence proximately causing the accident. The Buick automobile, owned by the Department was insured by defendant, The Insurance Company of the State of Pennsylvania (sometimes hereinafter referred to simply as 'Penn' or 'Pennsylvania') which denies coverage under the omnibus insurance clause contained in its policy on the ground the vehicle was being driven without the permission of the named insured.

Plaintiffs in the instant case, Mr. and Mrs. James M. Smith, who were occupants of the rear seat of the Valiant, sue Pennsylvania, State Farm, Vernon V. Poche and the minor, James R. Poche, for injuries received in the accident. Lieutenant Poche and his son have filed herein a third party petition against Pennsylvania which declined to defend the action against them and denied coverage on the ground herein previously stated. Our learned brother below denied motions for summary judgments filed on behalf of Pennsylvania but this issue is not before us on this appeal inasmuch as Pennsylvania has neither appealed nor answered the present appeal.

Following trial of these consolidated causes, our esteemed brother below rendered judgment in this matter dismissing plaintiffs' demands against State Farm and Pennsylvania and granting judgment in plaintiffs' favor against defendants, Vernon V. Poche and James R. Poche, both of whom have appealed.

The suit of Royal Indemnity Company is against defendant Pennsylvania and the Poches and seeks recovery of damages paid by Royal as collision insurer of the Valiant. Plaintiff's demand was rejected as against all defendants save and except the Poches.

Mrs. McBroom, who occupied the front seat of the Valiant, filed suit against State Farm, Pennsylvania and the Poches, praying for damages for the death of her husband, Henry A. McBroom, as well as personal injuries sustained in the accident. Her said demands were rejected as to all defendants excepting the Poches and she has appealed.

The final action, that instituted on behalf of the minor, Jeanne Leach, who occupied the rear seat of the Valiant with Mr. and Mrs. Smith, is against defendants, State Farm, Pennsylvania and the Poches. Her suit was likewise dismissed as to all defendants except the Poches and an appeal has been taken herein on her behalf.

Plaintiffs-appellants, excepting Royal Indemnity Company, alternatively pray for an increase in the awards made in their favor against the Poches in the event State Farm and Pennsylvania, or either of said insurers, are cast on this appeal. Their contention that the awards made by the trial court were only in the amount of their respective special damages because of the limited financial status of the Poches, is amply supported in the record.

All plaintiffs-appellants, excepting Mrs. McBroom, who instituted action under her maiden name, Martz, maintain decedent McBroom was guilty of negligence proximately causing the accident and that his said negligence occurred jointly with that of young Poche. Mrs. Martz and State Farm argue that young Poche was solely at fault. On the other hand, the Poches contend the Poche youth was free of fault and that the accident occurred solely because of the negligence of McBroom, consequently judgment in favor of plaintiffs should have been against State Farm alone. In the alternative, the Poches maintain judgments should have been rendered against them in solido, with State Farm. The Poches are joined by all plaintiffs in the position that to the extent the father and son are liable to plaintiffs, Pennsylvania is equally liable as insurer of the Buick automobile being operated by the son.

The final position of the Poches is that Pennsylvania was legally obligated to defend these actions against them and, for failure to do so, is responsible to them for all legal fees incurred in the defense and appeal of these several suits. Pennsylvania, content with its denial of coverage and disclaimer of any obligation whatsoever under its policy with respect to the accident in question, takes no position regarding the alleged negligence, fault or cause of the accident, or the responsibility of the drivers involved therein.

At the scene of the accident U.S. Highway 61 is a divided, four-lane, concrete highway running in a generally northerlysoutherly direction. Each of the traffic lanes is twelve feet in width, the two northbound lanes being separated from the opposing southbound lanes by a grass neutral ground estimated to be 24 feet wide. The inferior cross road, Louisiana Highway 431, is a two-lane hard surface asphalt roadway running in an east-west direction. Approximately three hundred feet east of Airline Highway the subordinate road makes a long sweeping curve towards the south. At the northeast corner of the intersection in question is situated a building housing a combined gas station and store which structure, the evidence reveals, obstructs to some extent the view from Brittany Road of traffic upon Airline Highway approaching the intersection from the north. On the north side of Brittany Road there is a sign warning traffic proceeding westerly along said highway of the intersection and a stop sign approximately 120 feet east of the intersection admonishing traffic upon the inferior roadway to come to a stop prior to entering the intersection. The stop sign is near the aforesaid commercial establishment situated at the northeast corner of the junction.

The accident occurred when young Poche, proceeding westerly along the inferior highway attempted to cross Airline Highway. The Buick automobile was struck in the vicinity of its right front door by the left front of the Valiant which latter vehicle was traveling in the left or inside lane of southbound Airline Highway traffic immediately preceding the collision. The impact, however, occurred in the right or outside southbound lane of the Airline Highway when McBroom veered his vehicle to his right in an effort to avoid the impending collision.

According to young Poche, he stopped at the stop sign on Brittany Road prior to entering the intersection. His testimony leaves the clear impression that at the time he thus stopped his view of approaching traffic from the north on Airline Highway was obstructed and impeded by the gas station and store situated at the northeast corner of the intersection. After stopping he accelerated his vehicle to cross the intersection and upon entering the northbound lanes of Airline Highway observed the McBroom vehicle approaching from the north or his right. At this point he considered the distance of the oncoming automobile sufficient that he could safely negotiate the intersection in advance of McBroom's vehicle. Upon reaching the neutral ground, however, he realized he could not clear the intersection ahead of the southbound vehicle and applied his brakes firmly in an effort to stop. Notwithstanding his action in this regard, the accident occurred.

John Warren Grand, a passenger in the Buick being driven by the Poche lad, in essence testified he was seated on the right of the front seat facing the driver and that he was unaware of the attending circumstances. He did not notice the stop sign at the intersection nor did he recall whether his host stopped before entering the intersection. His testimony further shows he was not cognizant of the approach of the McBroom vehicle upon the main highway.

Mrs. Martz (McBroom) testified she was seated beside her husband leaning back with her eyes closed and her head resting upon the seat of the car when she suddenly felt the brakes being applied and the car swerving to the right. She instantly opened her eyes and observed 'a sort of a black...