Waggonner v. Allstate Ins. Co.

• Decision Date: 10 March 1961
• Docket Number: No. 9422,9422
• Citation: 128 So.2d 214
• Parties: W. E. WAGGONNER, Sheriff, in and for Bossier Parish, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 214

128 So.2d 214

W. E. WAGGONNER, Sheriff, in and for Bossier Parish, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellants-Appellees.

No. 9422.

Court of Appeal of Louisiana, Second Circuit.

March 10, 1961.

Ferris & Achee, Shreveport, for Allstate Ins. Co., defendant-appellant.

Billy Ross Robinson, Bossier City, for W. E. Waggonner, plaintiff-appellee.

Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for T. L. James & Co. Inc., and National Surety Corp., defendants-appellees.

Before HARDY, GLADNEY and AYRES, JJ.

AYRES, Judge.

This is an action for property damage to plaintiff's automobile in which plaintiff impleaded, as defendants, Allstate Insurance Company and T. L. James & Company, Inc., and the latter's liability insurer, National Surety Corporation.

From a judgment in plaintiff's favor against Allstate Insurance Company, but wherein plaintiff's demands as against the other defendants were rejected, Allstate Insurance Company appealed. This appellant contends that the judgment wherein it was condemned is erroneous, but, in the alternative, that the judgment should be amended so as to include T. L. James & Company, Inc., and the National Surety Corporation as debtors, in solido. Before this court, these defendants contend that Allstate's appeal has no effect as against them.

The position taken by T. L. James & Company, Inc., and its insurer is well founded. Since plaintiff did not appeal from the judgment which rejected his demands and dismissed his action as against these defendants, they are no longer involved in this controversey. There is abundant authority for the principle where, in a suit against two or more defendants who are alleged to be solidarily liable, one or more of the defendants is dismissed and there is no appeal by plaintiff that an appeal by another defendant cast in the judgment has no effect against the defendant or defendants who were not cast. Aetna Life Ins. Co. v. De Jean, 185 La. 1074, 171 So. 450; Haindel v. Sewerage and Water Board, La.App Orleans 1959, 115 So.2d 871; Kahn v. Urania Lumber Co., La.App.2d Cir., 1958, 103 So.2d 476; Spanja v. Thibodaux Boiler Works, La.App., Orleans 1948, 37 So.2d 615. We, therefore, conclude that when plaintiff failed to appeal from the judgment insofar as it rejected his demands against T. L. James & Company, Inc., and the National Surety Corporation, the controversy, insofar as these defendants are concerned, was terminated and came to an end, and that the appeal by a codefendant was ineffective as making them parties to the appeal or to bring them before this court.

On the merits of the appeal, the issues relate to the question of negligence on the part of defendant's assured and of the negligence, or contributory negligence, of plaintiff. The issues involve only a question of fact.

The facts as to the occurrence of the accident may be briefly stated. The accident occurred on State Highway 3, a 2-lane concrete-paved highway, about 6 miles north of Benton, about 8:30 a.m., July 21, 1959. From the scene of the accident, the highway was straight and level for several miles to the south and, notwithstanding a slight curve to the north, visibility from that direction was likewise unobstructed for a distance of approximately a mile and a half. At the time of the accident the highway was undergoing extensive repairs in a widening and resurfacing project undertaken by the Department of Highways, contracted by T. L. James & Company, Inc. On the east side of the highway near the scene of the accident, the contractor was maintaining a construction yard for the storage of materials and equipment used in carrying out the work undertaken in the project. A speed limit of 45 miles per hour was posted on this highway, except near the entrance to the aforesaid yard where a limit of 20 miles per hour was posted.

The record discloses the occurrence of these incidents immediately preceding the accident. Errol L. Aymond and Don Sayes, employees of T. L. James & Company, Inc., had loaded, from the aforesaid construction yard, a flat-bed Chevrolet truck with steel rods for transportation to a culvert under construction a few miles to the north. In entering upon the highway, a portion of the load shifted on the truck and became slightly dislodged, requiring that the truck be stopped in order that the load be adjusted. Therefore, the driver brought the truck to a stop with the front bumper extending within three or four feet of the center line of the highway. Aymond, the driver, on seeing a vehicle approaching from the south, alighted from the truck and waved and signalled the stoppage of the oncoming car. This vehicle, driven by one Morris B. Seale, came to a stop within a few feet of the truck. Aymond, then seeing plaintiff's automobile approaching from the north in its proper lane of travel, signalled plaintiff to continue to proceed. On then looking to the south, Aymond observed a motor...