Tyler v. Marquette Cas. Co.

• Decision Date: 22 March 1955
• Docket Number: No. 8301,8301
• Citation: Tyler v. Marquette Cas. Co., 79 So.2d 376 (La. App. 1955)
• Parties: Warren Mack TYLER et al., Plaintiffs-Appellants, v. MARQUETTE CASUALTY COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana

Page 376

79 So.2d 376

Warren Mack TYLER et al., Plaintiffs-Appellants, v.MARQUETTE CASUALTY COMPANY, Defendant-Appellee.

No. 8301.

Court of Appeal of Louisiana, Second Circuit.

March 22, 1955.

Rehearing Denied April 14, 1955.

Booth, Lockard, Jack & Pleasant, Shreveport, for appellants.

Wilkinson, Lewis & Wilkinson, Shreveport, for appellee.

GLADNEY, Justice.

This action is for the recovery of damages arising from an automobile accident which took place on what is known as the Pine Hill Road of Caddo Parish.Plaintiffs are Warren Mack Tyler, Alonzo Tyler and Evelyn Tyler.The defendant is the insurer of Walter P. Anderson, the owner and operator of the Ford truck involved in the collision with a Ford custom Tudor automobile, the property of Alonzo Tyler, operated at the time by his minor daughter, Bobbie Jean Tyler, eighteen years of age.

On October 25, 1953, about 12:45 P.M. Bobbie Jean Tyler was driving the automobile on the Pine Hill Road in an easterly direction and approaching the driveway of Walter P. Anderson, located on the south side of the highway.At the same time Anderson was coming from the opposite direction with the intention of making a left turn across the highway and entering his driveway.When the Tyler car was a short distance west of the driveway, approximately fifty feet, it turned sharply to the left and struck the right front of the truck, the point of impact occurring on the north side of the highway slightly east of Anderson's driveway.The cause of the accident is attributed by plaintiffs to the Anderson truck moving into the south lane of traffic by commencing a left turn, which maneuver caused Bobbie Jean Tyler to turn the Ford automobile toward the left in an effort to avoid a collision.Defendant asserts Anderson, upon observing the approach of the Ford Tudor car, brought the truck to a stop entirely on the north side of the highway to await the passing of the Tyler car, and that Bobbie Jean Tyler became excited and changed the course of her car.

Following a trial on the merits there was judgment in favor of the defendant, rejecting the demands of plaintiffs, hence this appeal.The judge a quo has assigned written reasons for his decree.

In presenting the case to this courtcounsel for appellants argues the findings of the trial court were in error: first, as to the location of the point of impact and the positions of the two vehicles at the moment of impact; second, in giving too much weight to the testimony of Captain H. M. Terry, a deputy sheriff who testified that Bobbie Jean Tyler stated to him after the accident: 'It looked as if he was going to turn into his driveway'; third, in concluding the testimony of the witnesses who rode in the Anderson truck fully corroborated Anderson's testimony that the truck remained at all times on the north side of the highway; and, fourth, in disregarding completely the testimony of the witnesses for plaintiff in the absence of impeaching evidence.

At the scene of the accident the Pine Hill Road is a black-topped state highway approximately fifteen feet in width with shoulders extending several feet on either side of the hard surface.There the road is comparatively straight for several hundred feet in either direction.About six hundred feet west of the Anderson driveway the highway tops a hill which results in a slight down grade toward the east.The weather was clear and the road dry.

Accompanying Bobbie Jean Tyler on the front seat of the Ford Tudor automobile were her cousins, Dorothy Nell Tyler and Evelyn Tyler, and on the rear seat were Billy Tyler and Billy Hutchinson, each twelve years old.The Tyler car was returning from church and was traveling at a rate of speed established as not being in excess of fifty miles per hour.Anderson was driving a Ford pick-up truck proceeding westerly.Accompanying him were Mrs. Hedrian, his married daughter, Thelma Anderson, his fifteen year old daughter, and Juanita Wheeler, a young friend of Thelma Anderson.Mrs. Hedrian, seated next to Anderson, was holding in her lap her seventeen months old son.Juanita Wheeler was seated to the right of Mrs. Hedrian and seated upon her lap was Thelma Anderson.All of the occupants of the two cars testified.Further evidence consists of certain photographs taken shortly after the occurrence which show the Ford automobile in its position following the impact.The Ford truck was moved from the scene of the accident by Anderson before the pictures were taken, but a photograph shows the extent and nature of damage inflicted to this vehicle.The photographs show the locale and reflect the skid marks of the Tyler car.Some debris possibly resulting from the impact is indicated in the pictures but we think the evidence insufficient to establish whether such was due to the impact.It is significant, it seems to us, that the left side of each vehicle was not damaged in the severe collision.That only the right front sides of the two vehicles were affected creates doubt as to the correctness of the finding of the trial court the Anderson car was completely on its side of the road at the time of the collision.The photographs show the Tyler car came to rest with both of its right wheels very close to the center of the highway and with its left wheels two feet or more from the north edge of the road.Traffic attempting to pass could have experienced no difficulty in remaining on the black top in passing to the south side of the Ford Tudor automobile.

Bobbie Jean Tyler, an employee of a Shreveport bank, testified that as she came over the hill west of the place of collision she first saw Anderson and when a short distance away--which she incorrectly estimated at fifty feet--he began to turn in front of her whereupon she applied her brakes and pulled to her left in an effort to go behind him.Simultaneously, she said Anderson jerked his car back to the right and the right front fenders of the two cars met.She said when she first saw Anderson he was in the middle of the road some distance away from her and she then was traveling about forty-five miles per hour.Evelyn Tyler gave substantially the same testimony, stating that when within about forty feet from Anderson he attempted to make a left turn and then after Bobbie Jean Tyler had applied her brakes and turned to the left to try to miss him, Anderson truned back toward the right and the two right front fenders came together.Dorothy Nell Tyler testified that she was looking out into the field and did not observe the Anderson truck prior to the wreck.She was rendered unconscious by the collision.Billy Tyler and Billy Hutchinson, the two twelve-year old boys who were on the back seat gave testimony corroborating that of Bobbie Jean Tyler.Both of these witnesses, despite their ages, expressed themselves clearly in answer to questions of counsel on both sides.

In addition to the occupants of the Anderson truck who testified, appellants rely upon the testimony of Captain H. M. Terry, M. L. Parrott, an adjuster for the defendant insurance company, and Jack Anderson, a brother of the defendant.Captain Terry testified he arrived at the scene of the accident shortly after its occurrence and made an official report.He said there was only one set of skid marks which he measured and found to be approximately fifty-four feet.They were made by the Tyler automobile.The skid marks began in the south traffic lane and ended in the north lane, indicating the wheels moved in a curve to the north or left.He testified Bobbie Jean Tyler related to him the Anderson car looked as if it was going to turn in front of her and she applied her brakes.From this statement Captain Terry inferred the truck had not begun to make a turn when Bobbie Jean turned her vehicle to the left.It was developed on cross-examination that the report from which Terry was testifying was a different report from that which was made at the time of the conversation.Captain Terry apparently was not too positive about the exact words used by Bobbie Jean Tyler for he testified:

'A.As well as I remember, she said when she came over the hill and started down the hill, she saw the car, and it looked as if it was going to turn in front of her, and she applied her brakes.

'Q.As she came over the hill?A.No sir, it was a further distance away--I believe I do recall talking to her about it--I am not sure, because if it isn't on the report, I am not sure what she said.'

M. L. Parrott, an insurance adjuster, testified he obtained signed statements from Thelma Jean Anderson, Evelyn Tyler and Dorothy Nell Tyler.He insisted he was never told by anyone Anderson's truck had crossed the center of the road.He said he was told by the Tyler girls they thought Anderson's truck was going to make a left turn across the highway and it frightened them.He stated that he told the two Misses Tyler that he would not take a statement from them unless one of their parents was present, testifying further that Mrs. Tyler, the mother of Bobbie Jean was present at the time he took the statement.Mrs. Alonzo Tyler, mother of Bobbie Jean Tyler, in rebuttal, denied that she was present when the statement was supposed to have been taken.The witness was undoubtedly confused as to the identity of Bobbie Jean Tyler.

Walter P. Anderson, driver of the truck, said he was driving east on the Pine Hill Road and saw the girls approaching.He pulled over to his side of the road, pulled up to his driveway, signaling a turn with his hand, and then stopped.He remained stationary a second or two, waiting for the Ford automobile to come by, when its driver applied its brakes and pulled over into him.He said he had never moved over the center of the road but was near the center of the road.He said he saw the girls when they were about middle way of the hill and he could not estimate their speed but would say they were making fifty to fifty-five miles per hour.He stated his truck...