Bize v. Boyer

402 So. 2d 110
CourtLouisiana Court of Appeal
DecidedApril 15, 1981
Docket8048
StatusPublished
Cited by14 cases

This text of 402 So. 2d 110 (Bize v. Boyer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bize v. Boyer, 402 So. 2d 110 (La. Ct. App. 1981).

Opinion

402 So.2d 110 (1981)

Ralph BIZE et al., Plaintiffs-Appellees,
v.
Syble BOYER et al., Defendants-Appellants.

No. 8048.

Court of Appeal of Louisiana, Third Circuit.

April 15, 1981.
Rehearing Denied May 28, 1981.

*112 Provosty, Sadler & deLaunay by Michael T. Pulaski, Alexandria, for defendants-appellants.

McLure & McLure, John G. McLure, Alexandria, for defendants-appellees-appellants.

Chris J. Roy, Alexandria, for plaintiffs-appellees.

Before DOMENGEAUX, CUTRER and DOUCET, JJ.

DOMENGEAUX, Judge.

This case and its companion, Boyer v. Walker-Roemer Dairies, Inc., La.App., 402 So.2d 118, in which a separate opinion is being rendered this day, arise from an intersectional automobile collision.

In the foggy, pre-dawn darkness of October 21, 1976, Syble Boyer, then either 66 or 71, was driving her husband Emile's 1969 Chevrolet pickup in a northerly direction along Louisiana Highway 1 in Avoyelles Parish. With her in the truck's front seat was her daughter, Shirley Bize, and Shirley's major son, Rodney Bize. Mrs. Boyer was en route to the Joan of Arc Canning Factory to drop off the Bizes, who were seasonal employees at the factory.

As Mrs. Boyer approached Highway 1's intersection with Louisiana Highway 114, she slowed down and activated her left turn signal because she intended to turn onto Highway 114. Mrs. Boyer and the Bizes peered through the heavy fog attempting to determine if there was any oncoming traffic. Since they saw none, Mrs. Boyer began turning left onto Highway 114. However, before the turn was completed, the Chevrolet was struck by a 2frac12; ton Ford milk truck which was traveling in a southerly direction on Highway 1. The milk truck was being driven by Chester A. Mabry, who was at the time of the accident acting within the course and scope of his employment with Walker-Roemer Dairies, Inc., the owner of the truck. The Bizes and Mrs. Boyer were injured; the pickup truck was a total loss.

Before a year elapsed, Shirley Bize, her husband Ralph, and their son Rodney sued Syble and Emile Boyer; USAA Casualty Insurance Co., the insurer of the Boyer truck; Chester A. Mabry; and Walker-Roemer Dairies, Inc., for all damages resulting from the accident.

In the separate companion suit, Syble and Emile Boyer sued Chester A. Mabry and Walker-Roemer Dairies, Inc. for property damage and personal injuries which they felt were solely attributable to the negligence of Mabry in operating the milk truck.

The two cases were consolidated for trial, which was held on March 26, 1980. After hearing the evidence, the trial court issued an opinion in this case wherein he concluded that Mr. Mabry was negligently driving "at an excessive rate of speed and in disregard for the peculiar bad weather conditions existing on the morning of the accident." Interestingly, the judge issued a separate opinion in the companion case, No. 8049, wherein he stated that Mr. Mabry was driving "at an excessive rate of speed without headlights and in disregard for the peculiarly bad weather conditions existing the morning of the accident." (Emphasis added). No reason was given for the discrepancy in the opinions.

The trial judge also found that Syble Boyer was negligent in making an improper left hand turn in the path of oncoming traffic having the right-of-way, and in failing to see what should have been seen. The Boyers were denied recovery in the companion suit on the basis of Mrs. Boyer's contributory negligence.

In accordance with his findings of negligence, the judge rendered judgment against all defendants—Emile and Syble Boyer, USAA, Mabry, and Walker-Roemer Dairies—in *113 favor of Ralph Bize in the amount of $2,682.00 (for past and future medical expenses); in favor of Shirley Bize in the amount of $30,000.00 ($20,000.00 for past and future lost wages, $10,000.00 for past and future suffering and disability); and in favor of Rodney Bize in the amount of $500.00 (for pain and suffering). All defendants were bound solidarily, except for USAA Casualty Insurance Co., which was liable only to the extent of its policy limits of $5,000.00 per person, plus interest and costs. Expert witness fees and the court reporter's deposition fee were taxed as costs. All the defendants have appealed.

Chester Mabry and Walker-Roemer Dairies argue that Mabry was not negligent because he was traveling within the speed limit within his lane of travel at the time of the accident, and because he took proper albeit unsuccessful evasive measures when he noticed the Boyer vehicle in his path. These defendants also seek a reduction of the award to Shirley Bize and Ralph Bize on the grounds that Mrs. Bize's complaints were not attributable to the accident, her wages were speculative, and the medical expenses were incurred for treatment of injuries or complaints unrelated to the accident.

The Boyers and USAA contend that the trial court erred in finding Syble Boyer negligent in the instant case and contributorily negligent in the companion case which follows. They believe the judgment in the instant case should be affirmed in favor of the plaintiffs against Walker-Roemer Dairies and Chester Mabry, but reversed insofar as it allows recovery by the plaintiffs against the Boyers and USAA. (Unlike the other defendants, these defendants do not argue that the award to the plaintiffs should be reduced.) They further ask that the judgment in the companion case be reversed to allow recovery by Mr. and Mrs. Boyer against Chester Mabry and Walker-Roemer Dairies.

NEGLIGENCE

The only evidence bearing upon the issue of negligence is the testimony of the four individuals involved in the accident. All four testified that the accident occurred in pre-dawn darkness while a heavy fog hung over the highway, reducing visibility.

Chester Mabry testified that he was traveling the speed limit, which was 55 miles per hour. He knew that the intersection of Highway 1 and Highway 114 was heavily traveled at this time of the day, about 6 A.M., because he traveled this route every morning. He stated that the Boyer truck appeared to be stalled across his lane of travel when he first noticed it in the roadway. He did not notice the pickup truck's lights because they were shining down Highway 114 rather than Highway 1. Mabry attempted to avoid the accident by applying his brakes and swerving to his right, but his rapid speed, coupled with the fact that his milk truck was fully loaded, thwarted his avoidance attempt. He further testified that his lights were on at the time of the accident because he remembered turning them off after the accident.

The Bizes and Mrs. Boyer testified that they never saw the milk truck's lights before the accident. They felt they would have been able to see his lights—if in fact he had them on—in plenty of time to know whether they could turn safely or if they should stop to wait for him to pass. Their feeling was based on the fact that prior to the accident, they had passed other cars which had their lights on and the lights of those cars were plainly visible through the fog before the cars could be seen.

The trial judge found that Mabry disregarded the peculiarly bad weather conditions by driving at an excessive rate of speed. Although his speed may have been within the limit, we cannot say that the trial judge erred in finding that his speed was excessive, particularly since it was very foggy, visibility was diminished, and Mabry was aware that the intersection he was approaching was heavily traveled at that early time of day.

The trial judge also found that Mabry was driving without his headlights on.

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Bluebook (online)
402 So. 2d 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bize-v-boyer-lactapp-1981.