Delatte v. United States Fidelity & Guaranty Co.

116 So. 2d 169, 1959 La. App. LEXIS 1063
CourtLouisiana Court of Appeal
DecidedNovember 16, 1959
DocketNo. 4877
StatusPublished
Cited by4 cases

This text of 116 So. 2d 169 (Delatte v. United States Fidelity & Guaranty Co.) 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
Delatte v. United States Fidelity & Guaranty Co., 116 So. 2d 169, 1959 La. App. LEXIS 1063 (La. Ct. App. 1959).

Opinion

LOTTINGER, Judge.

This, and the companion suit entitled Zachary v. United States Fidelity and Guaranty Company, La.App., 116 So.2d 167, are before us on appeals taken by the defendant in each suit from judgments awarding the respective plaintiffs damages arising out of an automobile accident which occurred on November 19, 1958. The trial judge has favored us with written reasons for judgment which we herewith set out in full:

“The case of J. F. Delatte and his wife, Mrs. Nell Zachary Delatte, vs. United States Fidelity & Guaranty Company, No. A-5020, and its companion suit, Ralph B. Zachary and his wife, Mrs. Ora Lee Coates Zachary vs. United States Fidelity & Guaranty Company, No. A-5021, were consolidated for trial and tried on March 31, 1959. The defendant in both suits is United States Fidelity & Guaranty Company as the insurer of Mississippi Chemical Express and Roy Knigh-ton respectively. The plaintiffs’ allegations in both suits with respect to how the accident happened are identical.
“It is alleged that plaintiff, Mrs. Zachary, was driving her husband’s 1958 Chevrolet automobile on Louisiana Highway 19 in East Feliciana Parish at about 9:30 in the morning on November 19, 1958; that Mrs. Delat-te, the other plaintiff, was a guest passenger riding on the front seat with her. They were driving in a northerly direction on Highway 19, and as they reached a point just south of the town of Wilson in East Feliciana Parish, and as they neared the crest of a hill there came into view a short distance ahead two trucks proceeding in a southerly direction on the said highway, one of the trucks being a 1957 White truck and semi-trailer owned by Mississippi Chemical Express and being driven by Washington M. Akins, and the other truck being a cattle truck owned by Roy Knighton and being driven by Clarence Jones; that the driver of the cattle truck owned by Roy Knighton was at that time attempting to pass the truck owned by Mississippi Chemical Express and had preempted Mrs. Zachary’s traffic lane; that in an attempt to avoid a collision with the cattle truck, Mrs. Zachary put on her brakes and pulled to her right, but when her car hit the east shoulder of the road it swerved to the left and into the left traffic lane where it was struck by the truck owned by Mississippi Chemical Express and knocked into the ditch on the west side of the road.
“Defendant insurance company denied the accident happened in this manner and asserts that the cattle truck did not leave its right lane of traffic and did not preempt plaintiffs’ traffic lane; and, further, that the lead truck owned by Mississippi Chemical Express was in no wise negligent.
“After hearing all testimony adduced by plaintiffs and defendant, this Court found as a fact that the accident occurred as alleged by plaintiffs and that plaintiffs were in no wise negligent; and further found that the preponderance of the credible testimony proved conclusively that the driver of the sec[171]*171ond truck, that is, the cattle truck, did pull over into his left or northbound lane of traffic at about the time that plaintiffs’ car neared the crest of the hill over which plaintiffs could not have seen prior to attaining almost to the crest thereof.
“The Court further found as a fact that plaintiff, Mrs. Zachary, the driver of the car, was confronted with a sudden emergency upon seeing this cattle truck in her lane of traffic, that she immediately applied her brakes, pulled to her right and, in doing so, the car went out of control through no fault of hers, skidded across the road and into the path of the first truck, that is,, the Mississippi Chemical Express-truck, and thus the accident and attendant injuries to the plaintiffs ensued.
“The Court further found as a fact that the driver of the first truck, that is, the Mississippi Chemical Express truck, exercised due care and was not negligent, and his actions in no wise caused the accident and injuries to the plaintiffs.
“The Court further found as a fact that defendant’s driver of the first truck owned by Mississippi Chemical Express, by his own testimony, demonstrated that he could not have seen whether or not the second truck, this is, the cattle truck was attempting to pass him at the instant preceding the accident, in view of his testimony that he was looking forward just prior to the accident and saw plaintiffs’ car come over the hill, even though prior to that time he had looked into his rear view mirror and had seen the cattle truck a hundred or so feet behind him.
“The Court, after listening to the testimony of the plaintiffs’ witnesses, Mrs. Zachary and Mrs. Delatte, and observing their demeanor on the stand, is convinced that Mrs. Zachary and Mrs. Delatte are truthful witnesses and that they testified to the Court as to the true facts in the case. This opinion of the Court relative to the truthfulness of these witnesses is verified and substantiated by the undisputed fact that each of these ladies, without having opportunity to discuss the matter between themselves, and immediately and within a day or two following the accident, made to several people the identical statement as to how the accident happened as they related it in court.
“State Trooper Robert Morris testified that Mrs. Zachary told him at the hospital in Centreville within two hours after the accident happened that it happened in the same manner as she described it to the Court.
“In addition, both plaintiffs testified under oath that they described the accident just as they described it in court to a Mr. George Reynaud representing United States Fidelity and Guaranty Company the day following the accident or the day after. The court especially noted that Mr. George Rey-naud was in Court, sitting at the counsel table, and was pointed out by Mrs. Zachary and Mrs. Delatte as being the person to whom they gave these statements. Mr. Reynaud was not placed on the stand by the defendant to contradict these statements. The Court feels sure that if the defendant had been able to contradict these statements by Mr. Reynaud’s testimony, certainly they would have placed him on the stand.
“Turning now to consideration of the testimony offered by the defendant, the Court would particularly comment upon the testimony of the driver of the second truck, that is, the cattle truck. He was a country colored man who said that he had been working for Mr. Roy Knighton, the insured, for a number of years. He testified that he at [172]*172no time pulled out of his lane of traffic and pulled into the northbound lane of traffic. However, the Court reluctantly finds that this witness is not credible and his testimony is not subject to belief, especially considering the direct testimony of Mrs. Zachary and Mrs. Delatte. The Court is unable to believe this witness’ testimony, further, because of the conditions under which the accident happened. As aforesaid, Mrs. Zachary and Mrs. Delatte have testified that as they came over the hill they saw this cattle truck in their lane of traffic and that Mrs. Zachary immediately applied her brakes, causing her car to skid. The Court is unable to conceive of any reason for Mrs. Zachary to suddenly apply her brakes as she came over the hill unless there was some obstruction in her lane of traffic. Otherwise, there would have been no reason for her to do so.

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Related

Narcisse v. United States Fidelity & Guaranty Co.
228 So. 2d 186 (Louisiana Court of Appeal, 1969)
Carvell v. Winn
154 So. 2d 788 (Louisiana Court of Appeal, 1963)
Roux v. Brickett
149 So. 2d 456 (Louisiana Court of Appeal, 1963)
Zachary v. United States Fidelity & Guaranty Co.
116 So. 2d 167 (Louisiana Court of Appeal, 1959)

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Bluebook (online)
116 So. 2d 169, 1959 La. App. LEXIS 1063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delatte-v-united-states-fidelity-guaranty-co-lactapp-1959.