Dowden v. Miller

415 So. 2d 283, 1982 La. App. LEXIS 7279
CourtLouisiana Court of Appeal
DecidedApril 13, 1982
DocketNo. 14744
StatusPublished
Cited by2 cases

This text of 415 So. 2d 283 (Dowden v. Miller) 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
Dowden v. Miller, 415 So. 2d 283, 1982 La. App. LEXIS 7279 (La. Ct. App. 1982).

Opinion

EDWARDS, Judge.

This suit arises out of an automobile collision which occurred at the intersection of Louisiana Highway 3038 and U. S. Highway 61 near the town of Gonzales, Louisiana. Plaintiff, Hoover C. Dowden, was a guest passenger in a vehicle driven by John W. Edward. Edward was driving eastbound on La. 3038. When he arrived at the intersection of U. S. 61, he made a left turn onto that highway. At that point, his car was struck by a vehicle driven by defendant, Curby A. Miller, who was proceeding north on U. S. 61.

Dowden filed suit against Miller and his liability insurer, Allstate Insurance Company, claiming that the accident resulted solely from Miller’s negligence. Miller and Allstate answered, denying any negligence on the part of Miller, and filed a third party demand against Edward seeking contribution in the event that they should be found liable to Dowden. Plaintiff amended his petition, naming Charter National Insurance Company as an additional defendant. Dowden alleged that at the time of the accident there was an insurance policy issued by Charter National which provided uninsured motorist coverage for him.

Trial on the merits was held on October 19, 1979, and the matter was taken under advisement. On May 12, 1980, a motion to introduce new evidence was filed by plaintiff. This new evidence consisted of an affidavit from an officer in the Louisiana Department of Public Safety attesting to the fact that there was no liability insurance coverage on the vehicle of John W. Edward. After hearing, the trial court denied this motion.

On January 19, 1981, the trial court rendered judgment dismissing plaintiff’s suit as to all defendants at his cost. Plaintiff has appealed that judgment.1 He contends that the trial court erred in failing to find Curby Miller negligent. Alternatively, he asserts that the court erred in denying the motion to introduce new evidence and in failing to find Charter National liable under the provisions of the uninsured motorist insurance policy.

LIABILITY OF CURBY MILLER

The trial court’s determination that Curby Miller was not liable to plaintiff is a finding of fact which can be upset only upon a determination that it is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring [285]*285Company, 283 So.2d 716 (La.1973). We are not favored with reasons for the trial court’s judgment. However, our examination of the record reveals that the evidence clearly supports the determination that Miller was not negligent.

Plaintiff testified at trial that Edward stopped the vehicle in the median before turning into the northbound lane of U. S. 61. He estimated that the Miller vehicle was some 300 yards away in the inside lane when Edward entered the median. Dow-den testified that after entering the northbound inside lane, Edward moved to the outside lane, traveled some distance and was struck in the rear by the Miller vehicle. Dowden contended that the Miller vehicle was traveling at an excessive rate of speed. He also testified that when Edward stopped in the median he warned him of the approach of the Miller vehicle.

Not only does plaintiff’s version of the accident differ from that of the defendant, it is also at odds on some points with the account given by Edward. John Edward’s deposition was entered into the record by agreement of counsel. Edward, who was 80 years old at the time of the accident, testified that he never did see the Miller automobile. He also did not recall being warned by Dowden of the approaching Miller vehicle. Edward also testified that he was still in the act of turning when he was struck in the rear by Miller’s car.

The defendant testified that on the day of the accident he was traveling north on U. S. 61 toward Baton Rouge with his family. He estimated that he approached the intersection traveling in the inside lane at about 50 m. p. h. When he was about 200 yards away from the intersection, Miller testified, he saw the Edward vehicle stop at the stop sign on the west side of U. S. 61. Miller stated that he observed Edward cross the southbound lanes of traffic, enter the median at a slow speed (estimated to be 10 m. p. h.), and continue into the northbound inside lane without stopping. Miller testified that he moved his vehicle from the inside to the outside lane as a precautionary move and took his foot off of the accelerator. Miller further testified that as soon as Edward entered the inside lane, he suddenly and without warning attempted to move to the outside lane, in the immediate path of the Miller automobile. Miller testified that he hit his brakes, locked them up, skidded approximately 35 steps and struck the right rear portion of Edward’s vehicle. Mrs. Miller was riding with her husband that day and it was stipulated by all parties that her testimony would be the same as her husband’s.

Miller’s account is corroborated to some extent by the testimony of Deputy Bill Roux of the Ascension Parish Sheriff’s Department. Deputy Roux was in a vehicle behind the Edward automobile on La. 3038 and observed it cross the southbound lanes and enter the median at a speed of about 10 m. p. h. He observed the Edward vehicle pull into the median at an angle that would suggest an intention to enter the inside northbound lane. Roux then looked away from the Edward vehicle in order to check traffic in the southbound lanes, which he was beginning to cross. Roux did not see the actual impact but heard the crash “within a matter of seconds” after Edward entered the median area. Deputy Roux’s observations are consistent with defendant’s testimony that Edward pulled directly in front of the Miller car as it approached the intersection.

An accident report was prepared by a Louisiana State Police Officer, Bradley Tul-lier. Officer Tullier’s report was admitted into evidence by stipulation of the parties in light of his failure to appear for trial. The report describes the damage to Edward’s car which resulted from the impact with Miller’s car as being to the right rear side of the vehicle. There is no indication of any damage to the absolute rear of the vehicle. Some damage to the front of the vehicle is indicated, but this occurred when the vehicle struck a ditch after the initial impact with the Miller automobile. The damage indicated on the report contradicts the testimony of Edward and Dowden that the impact occurred and all the damage was sustained in the absolute rear of the Ed[286]*286ward vehicle. The physical reaction of the vehicle to the impact, diagramed in the accident report, also supports defendant’s testimony. Edward’s vehicle was spun in a clock-wise manner and landed in a ditch on the east side of the northbound lane, facing south. This physical reaction is consistent with Miller’s testimony that Edward’s vehicle was at an angle across the northbound lane attempting to get to the outside lane when it was struck. Furthermore, the police report estimates Miller’s speed at the time of the accident at 50 miles per hour, in a 55 miles per hour zone.

Our review of the record leads to the conclusion that the evidence supports a determination that the defendant, Miller, was not negligent. As a general rule of law, a motorist on a highway has the right-of-way over vehicles entering the highway from less favored roadways. DiPaola v. Fernandez, 270 So.2d 893 (La.App. 4th Cir. 1972); Sholar v. U. S. Fire Insurance Company, 261 So.2d 327 (La.App. 1st Cir. 1972); LSA-R.S. 32:124.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Loveday v. Travelers Ins. Co.
585 So. 2d 597 (Louisiana Court of Appeal, 1991)
Field v. Merritt
449 So. 2d 7 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
415 So. 2d 283, 1982 La. App. LEXIS 7279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowden-v-miller-lactapp-1982.