Whittington v. Sowela Technical Institute

• Decision Date: 16 September 1983
• Docket Number: No. 83-143,83-143
• Citation: Whittington v. Sowela Technical Institute, 438 So.2d 236 (La. App. 1983)
• Court: Court of Appeal of Louisiana
• Parties: 13 Ed. Law Rep. 1184 Carlyle Phillip WHITTINGTON, Individually and on Behalf of the Minor, Michael Shane Collum, Plaintiff-2nd Appellant, v. SOWELA TECHNICAL INSTITUTE, et al., Defendant-1st & 3rd Appellants.

Page 236

438 So.2d 236

13 Ed. Law Rep. 1184

Carlyle Phillip WHITTINGTON, Individually and on Behalf of the Minor, Michael Shane Collum, Plaintiff-2nd Appellant, v. SOWELA TECHNICAL INSTITUTE, et al., Defendant-1st & 3rd Appellants.

No. 83-143.

Court of Appeal of Louisiana Third Circuit.

Sept. 16, 1983.

Rehearing Denied Oct. 12, 1983.

Writs Denied Dec. 16, 1983.

Woodley, Barnett, Cox, Williams & Fenet, J.L. Cox, Jones, Tete, Nolen, Hanchey, Swift & Spears, Bret L. Barham, Lake Charles, for defendant-appellee-appellant.

Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, Roy A. Mongrue, Baton Rouge, Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Thomas W. Sanders, Lake Charles, McGlinchey, Stafford, Mintz & Cellini, Ernest P. Gieger, Jr., New Orleans, Scofield, Bergstedt, Gerard, Mount & Vernon, John B. Scofield, Lake Charles, for defendant-appellee.

Raggio, Cappel, Chozen & Berniard, Fred L. Cappel, Lake Charles, for defendant-appellee-appellant.

Before STOKER, DOUCET and KNOLL, JJ.

KNOLL, Judge.

Carlyle Phillip Whittington filed suit individually and on behalf of the minor child, Michael Shane Whittington (Michael was the son of the deceased from a prior marriage. His natural father [Mr. Collum] was also deceased. After the death of his mother, he was legally adopted by his stepfather, Mr. Whittington.), for the death of Wanda Whittington, plaintiffs' wife and mother respectively. Named as defendants were Sowela Technical Institute (hereafter Sowela) and the State Board of Elementary and Secondary Education (hereafter BESE), and their insurer, Travelers Insurance Company (hereafter Travelers); Jean B. Teel and her insurer, Allstate Insurance Company (hereafter Allstate); American International Rent-A-Car Corporation; Chrysler Corporation; E.G. McFillen d/b/a American International of Lake Charles; and National Union Fire Insurance Company (hereafter National Union).

Third party demands were filed by all defendants including third party demands against Acme Truck Line, Inc. Additionally, Sowela filed a third party demand against Continental Insurance Company (hereafter Continental).

Prior to trial summary judgment was granted in favor of American International Rent-A-Car dismissing it from the suit.

LSA-R.S. 13:5105 prohibits jury trials against public bodies. Accordingly, plaintiffs' claims against Sowela, BESE, and Sowela's third party demand against Continental were reserved to the trial judge. The determination of the extent of coverage provided by the National Union insurance policy was also reserved to the trial judge. All other issues were tried before a jury.

After a ten day jury trial a verdict was returned in favor of plaintiffs, Carlyle Phillip Whittington, individually and on behalf of the minor, Michael Shane Whittington, and against Jean Teel, Travelers as insurer of Sowela and BESE, National Union, and Allstate, assessing damages in favor of plaintiff, Carlyle Phillip Whittington, in the amount of $102,000.00 and in favor of plaintiff, Michael Shane Whittington, in the amount of $300,000.00. A verdict was rendered in favor of defendant, E.G. McFillen, d/b/a American International of Lake Charles. Also, judgment was rendered in favor of Acme Truck Line on the various third party demands filed by the defendants.

All remaining matters were submitted to the trial judge who assigned written reasons for judgment against Sowela and BESE, awarding $179,395.00 to plaintiff, Carlyle Phillip Whittington, and $226,781.00 to Michael Shane Whittington. The trial judge also rendered judgment in favor of Continental on the demand by Sowela, and further held that the policy of insurance issued by National Union provided limits of $10,000.00.

On November 23, 1982, a formal judgment was rendered on the verdicts handed down by the jury and by the trial judge. A suspensive appeal was timely filed on behalf of Sowela, BESE, and Travelers. Subsequently, a devolutive appeal was taken by plaintiffs to preserve certain issues not raised by first appellant. A devolutive appeal was also taken on behalf of Jean B. Teel. Allstate has deposited its policy limits into the registry of the court.

Sowela, BESE, and Travelers urge the following ten assignments of error:

1.) The Court erred in withholding evidence that releases had been signed by all the nurses taking this trip, including Wanda Whittington.

2.) The court erred in withholding evidence that plaintiff, Carlyle P. Whittington, had remarried.

3.) The court erred in excluding testimony from the jury regarding an impending separation between plaintiff and decedent.

4.) The court erred in limiting coverage of National Union to $10,000 rather than $100,000 for this accident.

5.) The court and the jury erred in finding that Jean Teel was an agent for Sowela in procuring the vehicle to be used for the field trip.

6.) The court and the jury erred in finding that Jean Teel was an agent for Sowela while operating the vehicle on the field trip.

7.) The court and the jury erred in not finding that the students on the field trip were engaged in a joint venture with the imputation of any negligence on the part of Jean Teel to each of them.

8.) The damages awarded by both the court and the jury were excessive.

9.) The court and the jury erred in finding that Jean Teel was negligent in her operation of the van.

10.) The court erred in dismissing Sowela's third party demand against Continental.

The plaintiffs urge the following three assignments of error:

1.) The trial court erred in holding that the policy of insurance issued by National Union on the van had limits of $10,000 rather than $100,000.

2.) The trial judge erred in holding that there was no independent negligence on behalf of Sowela through its administrative or instructional personnel.

3.) The damages assessed by the trial judge and the jury were inadequate.

FACTS

Wanda Whittington was a member of the senior nursing class at Sowela located in Lake Charles. On April 6, 1979 the senior nursing students were participating in a field trip to tour M.D. Anderson Hospital in Houston, Texas. Mrs. Whittington, along with 15 other class members and 2 Sowela faculty members were occupying a 15 passenger Plymouth Voyager van owned by the Terry B. Mack Corporation and/or E.G. McFillen, d/b/a American Rent-A-Car of Lake Charles. The van was driven by Jean Teel, a member of the nursing class. While proceeding west on Interstate 10 in the vicinity of Hankamer, Texas, the van was "tail-gated" by an "18-wheeler" tractor-trailer unit. The accident occurred when Jean Teel negotiated the van from the inside lane to the outside lane to allow the "18-wheeler" to pass. In this maneuver, the van strayed from the main traveled portion of the highway onto the shoulder. Jean Teel, attempted to drive the van back onto the highway, lost control and overturned, resulting in the deaths of Mrs. Whittington and another student, as well as multiple injuries to the other passengers. Mrs. Whittington showed signs of life for 15 to 20 minutes.

RELEASE

As a requirement to participate in the trip to M.D. Anderson Hospital, Sowela distributed a mimeographed "release" form to each student nurse for signature. The Whittington document read as follows:

"Sowela Technical Institute

Practical Nursing Department

I, Wanda Whittington, voluntarily agree to
                   -----------------
                participate in the following activity
                List activity--M.D. Anderson Senior Trip
                place--                  Houston, Texas
                date--                   4-6-1979
                and hereby relieve Sowela Technical Institute
                of any and all liability associated with
                the above
                                         s/Wanda Whittington
                                         ----------------------
                                               Name
                                              4-2-1979
                                         ----------------------
                                               Date"
                

Mrs. Whittington signed the document and returned it to the school personnel.

Plaintiffs filed a motion in limine to preclude the introduction of any evidence concerning the "releases". The trial court sustained the motion. Sowela, BESE and Travelers made a proffer of this evidence.

Where a contract is not contrary to public order or good morals, LSA-C.C. Art. 11 permits an individual to waive personal rights that the law has established. The codal article provides:

"Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order on good morals.

But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good."

Sowela, BESE, and Travelers urge that the contract which Mrs. Whittington signed was validly executed and not in contravention of Civil Code Article 11. In support of their position four cases are cited: Forsyth v. Jefferson Downs, Inc., 152 So.2d 369 (La.App. 4th Cir.1962), writ refused 244 La. 895, 154 So.2d 767 (1963); Celestin v. Employers Mutual Liability Insurance Co. of Wisconsin, 387 F.2d 539 (5th Cir.1968); Battig v. Hartford Accident & Indemnity Co., 482 F.Supp. 338 (W.D.La.1977), affirmed 608 F.2d 119 (5th Cir.1980); and, Robillard v. P. & R. Racetracks, Inc., 405 So.2d 1203 (La.App. 1st Cir.1981).

The first Louisiana case which bears on the determination of the public policy question was Sandel & Lastrapes v. City of Shreveport, 129 So.2d 620 (La.App. 2nd Cir.1961). That case stands for the broad proposition that: "It is contrary to public policy to allow a contractee to stipulate exemption from negligent acts which cause injury."

Since Lastrapes, supra, was first penned only five Louisiana cases have dealt with the public policy issue herein presented. Three of the cases, Forsyth v. Jefferson Downs, Inc., supra, Celestin v. Employers Mutual Liability Insurance Co. of Wisconsin, supra, and, Robillard v. P. &...