Waguespack v. Savarese

• Decision Date: 24 May 1943
• Docket Number: 17864.
• Citation: 13 So.2d 726
• Court: Court of Appeal of Louisiana — District of US
• Parties: WAGUESPACK ET AL. v. SAVARESE ET AL. RUMMEL v. WAGUESPACK ET AL. SAVARESE v. WAGUESPACK ET AL.

13 So.2d 726

WAGUESPACK ET AL. v. SAVARESE ET AL.

RUMMEL v. WAGUESPACK ET AL.

SAVARESE v. WAGUESPACK ET AL.

No. 17864.

Court of Appeal of Louisiana, Orleans.

May 24, 1943

Rehearing Denied June 21, 1943. [Copyrighted Material Omitted]

Legier McEnerny & Waguespack, of New Orleans, for Mr. and Mrs. F. Poche Waguespack and others.

Henry & Kelleher, of New Orleans, for Indemnity Ins. Co. of North America.

Weiss & Weiss, of New Orleans, for James Rummel and Ernest Savarese.

JANVIER Judge.

On August 27th, 1938, there were filed in the Civil District Court for the Parish of Orleans three damage suits all growing out of the same accident,--an automobile collision which occurred on the afternoon of August 29th, 1937, on the concrete highway between Covington and Slidell in Louisiana. One of the automobiles which was involved was a Hudson sedan owned and driven by F. Poche Waguespack and occupied with him by his wife, Mrs. America Abaunza Waguespack, and their three minor children, F. Poche Waguespack, Jr., and America Waguespack, both of whom were injured, and a third child, who was not hurt. The other automobile was a Chrysler owned by James Rummel, which was being driven at the time by Ernest Savarese. Rummel was seated alongside Savarese on the front seat.

In the first suit filed, Mr. and Mrs. Waguespack are plaintiffs for themselves and also on behalf of their two minor children who were injured. They make both Savarese and Rummel defendants and they ask for solidary judgments against them or, in the alternative, "against whichever of the defendants may be legally liable for the consequences resulting from the accident * * *".

Savarese and Rummel, in separate suits, pray for solidary judgments against Waguespack and the Indemnity Insurance Company of North America alleging that that corporation is the liability insurance carrier of Waguespack and that, therefore, judgment may be rendered directly against it because of Act 55 of 1930.

It was agreed that the three suits should be consolidated for all purposes and, after a trial, there was judgment dismissing the suits of Savarese and Rummel and in favor of Mr. and Mrs. Waguespack and their children, and against Savarese and Rummel solidarily in the following amounts:

In favor of Mr. Waguespack, himself, for $1558.00

In favor of Mrs. Waguespack for 500.00

In favor of Mr. Waguespack for the use and benefit of the minor, 100.00 and

F. Poche Waguespack, Jr., for

In favor of Mr. Waguespack for the use and benefit of the minor, 300.00

America Waguespack, for

Savarese and Rummel have appealed and Mr. and Mrs. Waguespack, both on their own behalf and for the benefit of their two minor children, have answered the appeal asking that the award in each case be increased to the amount originally prayed for.

The record shows that the accident occurred at about 5 o'clock on the afternoon of Sunday, August 29th, 1937, at a point a few miles west of Slidell. The weather was clear and the paved concrete highway was dry. The Rummel car, a Chrysler, was going west and the Waguespack car, a Hudson, was proceeding east.

Mr. and Mrs. Waguespack declare that as the cars approached each other, the Rummel car swerved to its right to such an extent that its right front wheel left the concrete portion of the highway and, on the dirt shoulder, struck a small puddle of water and that the driver, Savarese, pulled it so suddenly to the left that it not only passed back on to the concrete, but, in fact, swerved over to the left or wrong side of the highway, and that then Savarese again turned it sharply to the right and then, at least once more, "zig-zagged" back and forth from one side of the highway to the other.

Mr. Waguespack states that as the Rummel car was thus zigzagging back and forth, he was driving his car as far to the right as it was possible to drive it with safety; that he could go no further to the right because of a deep ditch which was on that side of the shoulder. He says that as he was doing this, he was also reducing the speed of his car which was already slow but that on the last swerve or zigzag, as the Rummel car was going back from the wrong side of the road towards its correct side, it passed diagonally in front of his car, and that its left front fender struck his car and turned it to its left, badly damaging it and injuring himself, Mrs. Waguespack and their two children.

Savarese and Rummel, on the other hand, declare that their car was at all times on the correct side of the road and that the Waguespack car was the one which left its correct position on the highway and passed partially to the shoulder to the right, and that, in attempting to drive it back upon the concrete, Waguespack pulled it too sharply to the left and crashed it into the left side of the Rummel car as it was passing.

The Waguespack version is corroborated by two other motorists whereas the other version finds support in the statement of a third disinterested automobile driver who says that he, too, witnessed the collision.

F. B. Otell, one of the motorists who corroborates Waguespack's version, says he was driving behind the Rummel car and that he saw it run off the edge of the concrete and splash into a puddle of water. He adds that

"This car (the Rummel car) went off the edge of the road on the right side of the road. There was evidently a rut filled with water on the edge of the road as I saw a splash. The car cut suddenly to the left in an attempt to get back on the road and crossed to the left or wrong side of the road. This car went as far to the left as a car should be travelling in the opposite direction. As the car cut again to the right it was struck by the car of Mr. F. Poche Waguespack travelling on his own right side of the road in the opposite direction. The collision occurred on Waguespack's side of the road."

He also says:

"The point of collision occurred somewhere on the South, or Waguespack side of the road. The Waguespack automobile was on the South or its right side of the road headed straight East and the Rummel car which was on the South side of the road attempting to get back to the North side was struck by the Waguespack automobile. At the time of the actual collision the Rummel car was attempting to get back to its own side of the road and was partially over the center."

The other witness who agreed with the Waguespack version was E. J. Morel, who says that he was driving behind Mr. Waguespack and that the Rummel car evidently "* * * pulled over to its own right side, and evidently got on the soft shoulder, and pulled back to the left side, and went that way for, oh, I guess two or three times, and finally it struck Mr. Waguespack's car on its own right side going into Slidell. In other words, Waguespack's car evidently struck the Chrysler on its left side."

On the other hand, the third disinterested eye-witness, Mr. Robert, says that he was following the Rummel car; that it did not run off the concrete to its right and did not, at any time, cross to the wrong side of the road or zigzag back and forth. He says, on the contrary,

"It looks like the big car (Waguespack's) either hit a rock or a shoulder."

He states that, in trying to drive it back upon the concrete, Waguespack "cut like that * * * towards his left" and "after it was cut like that and bounced around * * * well, they came together."

It seems to be well established that when the automobiles came to a stop the Rummel car was almost entirely off the concrete on its correct side of the road, and that the Waguespack car was at least part way across the center line of the concrete with the front portion on the wrong side and it is hard to understand how these cars could have come to rest in those positions if the accident occurred as Mr. Waguespack says it did. However, when we study the oral evidence we find that that in favor of Mr. Waguespack preponderates to such an extent as to leave in our minds no doubt that the accident occurred just as he and his witnesses say that it did. And our brother of the District Court must have thought so too.

Counsel for Savarese and Rummel attack the testimony of Waguespack and his witnesses, claiming that it contains contradictions and inconsistencies. In minor particulars, there is no doubt that it does, but not to such an extent as to create the impression that it is untrustworthy.

The record is a very large one. We have carefully compared all of the testimony and can reach no other conclusion than that the Rummel car did leave its correct position and did swerve back and forth at least twice from its correct side of the road to the other, and that finally, as it was being driven back to its correct side, the Waguespack car struck it at or near its left front fender, causing damage along the left side and knocking off the left door.

The question which has caused us much concern is whether or not, in spite of these actions of the Rummel car, Waguespack could not have avoided striking it had he had his car under control and had he been on the alert. It is by all conceded that neither of the cars was being operated at an excessive speed.

If Mr Waguespack's story is correct, when he was somewhere between 150 and 300 feet from the other car he saw it swerve to his side and back at least twice. It is obvious that this must have taken a few seconds. And, since he was driving at a moderate speed, it is possible that he might have brought his car to a stop when he saw the other car cut to his side of the road. And yet we think it quite possible that, as he says, he did not realize that the other car would stay on the wrong side or would come back to the wrong side and he assumed, as he was justified in doing, that it would return...