White v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 16 February 1953
• Docket Number: No. 40694,40694
• Citation: 42 A.L.R.2d 338,64 So.2d 245,222 La. 994
• Parties: , 42 A.L.R.2d 338 WHITE v. STATE FARM MUT. AUTO. INS. CO. et al.
• Court: Louisiana Supreme Court

Page 245

64 So.2d 245

222 La. 994, 42 A.L.R.2d 338

WHITE v. STATE FARM MUT. AUTO. INS. CO. et al.

No. 40694.

Supreme Court of Louisiana.

Feb. 16, 1953.

Rehearing Denied March 23, 1953.

Durrett & Hardin, Baton Rouge, for Joseph Edward White, plaintiff, appellee below and appellant.

Huckabay, Seale, Kelton & Hayes, Baton Rouge, for State Farm Mut. Auto. Ins. Co., defendant, appellant below and respondent.

Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for Joseph Silvio and Great

American Indem. Co., defendants and respondents.

McCALEB, Justice.

This is an action in damages arising out of a motor vehicle accident which occurred on the western incline of the Mississippi River bridge at Baton Rouge during the early morning hours of January 30th 1949, when a pick-up truck, owned by Red Stick Tire & Supply Company and driven by its employee, Adam J. Tullier, ran into the rear end of a Louisiana Department of Highways' truck which was stopped on the south lane of the bridge at a point approximately two-thirds upwards of the middle. Plaintiff, a guest passenger in the pick-up truck, sustained painful and permanent injuries in the accident for which he seeks recovery of $33,100.44. The defendants in the case are Red Stick Tire & Supply Company and its liability insurance carrier, State Farm Mutual Automobile Insurance Company, Joseph Silvio, the operator of the Department of Highways' truck, and Great American Indemnity Company, the insurer of Department of Highways.

In his petition, plaintiff attributes the accident and his ensuing injuries to the combined negligence of Tullier, who he alleges failed to keep a proper lookout and negligently ran into the rear of the highway truck, and Silvio, who, it is averred, was at fault in stopping the truck on the bridge at night without visible tail lights, in failing to place proper flares to the front and rear of the truck and in parking the truck in such a position that sufficient clearance was not allowed for the safe passage of other traffic.

Red Stick Tire & Supply Company and its insurer contended in their answer that Tullier was not acting within the course and scope of his employment at the time of the accident. They also denied that he was at fault in any respect and, alternatively, pleaded the contributory negligence of plaintiff as a bar to his recovery. The other defendants, Silvio and Great American Indemnity Company, declared that the accident was caused solely through the negligence of the driver of the pick-up truck and averred that neither Silvio nor the Department of Highways was chargeable with fault in the premises. Similarly, they alternatively pleaded contributory negligence on the part of plaintiff.

Following a hearing on these issues, the trial judge concluded from the evidence that the accident was occasioned by the combined and concurring negligence of Tullier and Silvio. Accordingly, he held State Farm Mutual Automobile Insurance Company, Great American Indemnity Company and Silvio liable in solido. The amount of the judgment was $14,100.44. However, the two insurance companies were cast for not more that $10,000, which is their maximum liability under contracts with their respective insureds. The judgment was silent as to the liability of Red Stick Tire & Supply Company, which was tantamount to its dismissal from the proceeding. In truth, no serious controversy existed as to that defendant for, admittedly, Tullier was using the truck for purposes of his own at the time of the accident and therefore the doctrine of respondeat superior was clearly without application. Conversely, the liability of the insurer of Red Stick for Tullier's negligent operation of the truck is predicated upon an omnibus clause contained in the policy and, although the applicability of this policy provision was at first questioned by the insurer, it has long since been conceded by it that, inasmuch as Tullier had initial permission to use the truck, he was afforded full protection under the policy as an additional insured, Dominguez v. American Casualty Co., 217 La. 487, 46 So.2d 744, and the issue has passed out of the case.

All defendants cast in the lower court prosecuted appeals to the Court of Appeal, First Circuit. There, the judgment was reversed, the Court ruling that, irrespective of the primary negligence of the operators of the trucks involved in the accident, plaintiff was not entitled to recover as he was guilty of contributory negligence having causal connection with his injuries. See 55 So.2d 75. On plaintiff's application, we granted certiorari for the purpose of examining the correctness of this holding.

The salient facts of the case are not in dispute. We find them to be as follows:

On January 29th 1949, Tullier, an appliance serviceman in the employ of Red Stick Tire & Supply Company, was engaged in installing a heating unit for a customer and was using the pick-up truck (later involved in the accident) in connection with his duties. He completed his work at about 8:30 p. m. and went to his home in Baton Rouge where he bathed, changed clothes and had supper. At about 10:30 p. m. he drove the truck to the Oasis Bar, a saloon in Baton Rouge of which plaintiff is part owner, where he remained until closing time at midnight.¹ He and plaintiff decided then to visit another saloon, known as the Country Club, which is situated across the river in East Baton Rouge Parish approximately three or four miles away. The pick-up truck was used for the purpose of this trip, Tullier driving it over the bridge and to the desired destination at a speed of between 30 and 35 miles an hour.

Prior to and at the time of the accident, the weather was inclement; it was sleeting intermittently and exceptionally cold. Because of these conditions, the Department of Highways had directed Silvio to spread salt over the paved roadways of the Mississippi River bridge in order to prevent ice and sleet from accumulating thereon. When Tullier and plaintiff drove over the bridge on their journey into West Baton Rouge Parish, the north lane over which they travelled had already been salted by Silvio and his crew. During the salting operations, the Highway Department employees placed warning signs lighted by flares at each end of the bridge. There were two signs at each approach (the east and the west) stating 'Men working on the Bridge--Drive Slow' and 'Icy Pavement.' On the way over to the Country Club, Tullier observed the signs but did not encounter the highway truck as it had already completed the salting of that roadway of the bridge.

Tullier and plaintiff had been at the Country Club approximately an hour when they decided to return to East Baton Rouge. Meanwhile, sleet had been falling heavily and had covered the windshield of the pick-up truck while it was parked. Tullier and plaintiff removed the ice from the driver's side of the windshield and, with his windshield wiper operating, Tullier was able to have good vision of the road ahead. On the return trip, both he and plaintiff, while they were upon the approach of the south lane of the bridge, observed the warning signs that had been placed thereon by Silvio and his crew.² Tullier continued on at a speed of 30 to 35 miles an hour and, for some wholly unexplained reason,³ failed to see the Department of Highways truck, which had stopped at a point two-thirds of the distance upward on the western incline of the bridge, until he was about ten feet from it. At that time, it was, of course, too late to avert an accident.

The Court of Appeal took the position that the alleged primary negligence of Tullier and Silvio was unimportant because, in any case, plaintiff was guilty of such imprudent conduct as to preclude his recovery. It found that plaintiff's derelictions consisted of riding in the pick-up truck when his side of the windshield was so coated with sleet that he could not see sufficiently well to describe any type of object; that he permitted Tullier to drive at a speed of 30 to 35 miles per hour up the incline of the bridge without protest, in spite of the warning signs commanding slow driving because men were working on the bridge; that he did not realize, when he should have been aware, that the traffic lane of the bridge was obstructed by a truck; that he failed to see that Tullier heeded the signs to go slow and that, had he done so, the accident would not have occurred.

We think that the ruling of the Court of Appeal has the effect of burdening the guest passenger in a motor vehicle with a corollary duty of care for the safety of the operation equal to that imposed upon the driver himself.

Contributory negligence is, as the phrase signifies, negligence which contributes to the accident, that is, negligence having causal connection with it and but for which the accident would not have occurred.⁴ Insofar as the rights of a guest in an automobile are concerned, it is settled that, in actions against third persons, the negligence of the host driver does not bar recovery because his negligence cannot be imputed to the guest. Lawrason v. Richard, 172 La. 696, 135 So. 29; Lorance v. Smith, 173 La. 883, 138 So. 871. However, a guest may be denied recovery on the ground of contributory negligence in instances where he is guilty on his own part of independent negligence of such a nature, that, but for which, his injuries would not have been sustained. Lorance v. Smith, supra; Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314; Delaune v. Breaux, 174 La. 43, 139 So. 753; Squyres v. Baldwin, 191 La. 249, 185 So. 14. But in determining whether the asserted fault of a guest has been a contributing factor in bringing about his injuries, it is first necessary to ascertain what duties are imposed upon him as pertain to the operation of the vehicle and the safety of the journey. It is firmly established by the above cited authorities of this Court and others of the Courts of Appeal of this State,...