Wilson v. Southern Farm Bureau Casualty Company

• Decision Date: 11 March 1960
• Docket Number: No. 18056.,18056.
• Citation: 275 F.2d 819
• Parties: Le Roy L. WILSON, Appellant, v. SOUTHERN FARM BUREAU CASUALTY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

275 F.2d 819 (1960)

Le Roy L. WILSON, Appellant, v. SOUTHERN FARM BUREAU CASUALTY COMPANY, Appellee.

No. 18056.

United States Court of Appeals Fifth Circuit.

March 11, 1960.

Donald V. Organ, New Orleans, La., for appellant.

Robert J. Vandaworker, Baton Rouge, La., Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for Southern Farm Bureau Cas. Ins. Co.

Before RIVES, Chief Judge, and HUTCHESON and TUTTLE, Circuit Judges.

RIVES, Chief Judge.

This appeal is from a judgment for the defendant entered upon a jury's verdict. The plaintiff sought recovery from the defendant insurance company under the Louisiana Direct Action Statute, LSA-R.S. 22:655, for extremely severe personal injuries suffered in an automobile collision.

The collision occurred in the outskirts of Baton Rouge, Louisiana, at the intersection of Airline Highway and Winbourne Avenue. Airline Highway runs generally north and south and Winbourne Avenue intersects it at right angles. Airline Highway is a four-lane thoroughfare, with the northbound lanes separated from the southbound lanes by a neutral ground. Winbourne Avenue is a two-lane street. Stop signs face traffic approaching Airline Highway from Winbourne Avenue. On Airline Highway on either side of the Winbourne Avenue intersection the neutral ground has a cutaway section for cars intending to make a left turn to pull into and stop before proceeding across the two lanes for traffic approaching from the opposite direction. Airline Highway is level and straight at the intersection and for a long distance in each direction.

The collision occurred at approximately noon on April 15, 1957. The weather was clear and dry. The speed limit on Airline Highway was sixty miles per hour for automobiles and forty-five miles per hour for trucks.

Appellant, alone in a Mercury automobile, was proceeding north on Airline Highway intending to make a left turn into Winbourne Avenue. He stopped in the neutral ground and waited for some traffic to pass. The milk truck of appellee's insured was being driven south on Airline Highway at a speed of about forty-five miles per hour. Each driver saw the other vehicle for a considerable time before the collision. The milk truck had been behind another automobile in the outside lane of the southbound Airline traffic, but before reaching the intersection, it pulled from the outside lane and moved into the inside lane next to the neutral ground.

The appellant testified that the milk truck was blinking a signal light for a left turn, but this was denied by several witnesses for the appellee. The collision occurred when the appellant moved the Mercury automobile from a stopped position in the neutral zone and was crossing the southbound traffic lanes of Airline Highway. The milk truck laid down 47 feet of skid marks angling from the inside lane of Airline Highway to the outside lane and to the point of impact. It struck the right center of the Mercury automobile broadside.

The appellant does not argue that he was entitled to judgment as a matter of law, but specifies several claimed procedural errors, each of which will be considered.

The district court charged the jury in accordance with defendant's requested charge No., 1 as follows:

"Under the Louisiana State Highway Regulatory Law a driver attempting to make a left turn on a public highway must make certain that the turn can be made without danger to normal over-taking or oncoming traffic, and he must yield the right of way to such vehicles. When a left turn is being made and an accident occurs, the burden rests heavily on the driver who is making the left turn to explain how the accident occurred, and to show he was free from negligence."

The plaintiff duly objected to the giving of that charge, as follows:

"The Plaintiff excepts to the Defendant\'s Charge Number One, which was granted and given, for the reasons that the charge itself does not contain the exceptions to that charge, which, of course, is the doctrine of last clear chance. And the charge is also objectionable because of the use of the word `heavily\' on there, which the burden actually is the same burden that rests on the person who is claiming negligence or any other defense or any other assertion, and the use of the word `heavily\' is superfluous and put a greater emphasis on that particular charge than on the other charges, contrary to what the intent and purpose of the charges are."

Comparing the challenged charge with the statutory language prescribing the duty of a motorist turning his vehicle,¹ we might be inclined to agree with the appellant. The statutory duty is couched in the same language as that used in the statutes of other states. Such statutes are generally construed so as not to "convert one wishing to turn into an insurer of others approaching nor prohibit his turning until the circumstances render his crossing absolutely free from danger." 2 Blashfield Cyclopedia of Automobile Law and Practice, Section 1121, p. 430. In Louisiana, "a motorist who desires to make a left turn on a city street is not required by law to wait until there is no traffic in sight before attempting to do so." Kelly v. Neff, La. App.1943, 14 So.2d 657, 660; Moncrieff v. Lacobie, La.App.1956, 89 So.2d 471. Unfortunately for the appellant, however, the Court of Appeals of Louisiana, Orleans, has declared the law in almost the precise terms used in the charge:

"The State Highway Regulatory Law, LSA-R.S. 32:235, 236, makes it clear that a driver attempting to turn to his left on a public highway must make certain that it is safe to do so. When such a left-hand turn is being made and an accident occurs, the burden rests heavily on the driver who is making the lefthand turn to explain how the accident occurred and to show that he was free from negligence."

Codifer v. Occhipinti, La.App.1952, 57 So.2d 697, 699. See also, American Fidelity & Casualty Co. v. Drexler, 5 Cir., 1955, 220 F.2d 930, 933; Seale v. Stephens, La.App.1946, 24 So.2d 651, 653; Aetna Casualty & Surety Co. v. Crow, La.App.1956, 86 So.2d 212, 214.

Admittedly, "in civil jury cases federal courts evaluating decisions of Louisiana state courts as precedents have the difficult task of separating the decisions of the Louisiana courts on the law from their review of the facts." Wright v. Paramount-Richards Theatres, 5 Cir., 1952, 198 F.2d 303, 306. The language quoted, supra, from Codifer v. Occhipinti, 57 So.2d 697, 699, is so phrased as to announce a general principle of law, and, accordingly, we consider it binding upon this Court under the Erie doctrine.² It follows that there was no reversible error in the giving of defendant's requested charge No. 1.

We find no reversible error in the giving of defendant's requested charge No. 14.

"Number fourteen: Your verdict must be based solely and exclusively on the evidence in the case. You cannot be governed by passion, prejudice, sympathy, or any motive whatever except a fair and impartial consideration of the evidence. And you must not, under any circumstances, allow any sympathy which you might have or entertain for the plaintiff to influence you in any degree whatsoever in arriving at your verdict. The court does not charge you not to sympathize with the plaintiff, because it is only

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