Harrigan v. Freeman

498 So. 2d 58, 78 A.L.R. 4th 601
CourtLouisiana Court of Appeal
DecidedOctober 15, 1986
Docket85 CA 0752
StatusPublished
Cited by31 cases

This text of 498 So. 2d 58 (Harrigan v. Freeman) 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
Harrigan v. Freeman, 498 So. 2d 58, 78 A.L.R. 4th 601 (La. Ct. App. 1986).

Opinion

498 So.2d 58 (1986)

Gayle M. HARRIGAN
v.
Chester FREEMAN, Northside Auto and Truck Co. and General Accident Insurance Co.

No. 85 CA 0752.

Court of Appeal of Louisiana, First Circuit.

October 15, 1986.
Rehearing Denied December 10, 1986.

*60 Hugh Uhalt & Gothard Reck, New Orleans, for plaintiff.

Tom Matheny, Hammond, for defendants.

Before LOTTINGER, SHORTESS and CARTER, JJ.

CARTER, Judge.

This is a suit for damages arising out of an automobile accident.

FACTS

On April 22, 1983, plaintiff, Gayle M. Harrigan was a passenger in her own automobile, which at the time was being driven by Stanley Rubioe. While stopped for a red light, the two were allegedly hit from behind by Chester Freeman, an employee of the alleged owner of the truck, Northside Auto & Truck Company (Northside). At the time of the accident, Northside had a liability insurance policy with General Accident Insurance Company (General Accident) covering the Northside truck. As a result of this accident, plaintiff sustained serious injury to her lower back.

Plaintiff filed suit for damages on September 15, 1983, against Freeman, Northside and General Accident. Plaintiff alleged that the sole and proximate cause of the accident was the negligence of Northside's employee, Chester Freeman, who at the time of the alleged accident was operating the truck within the course and scope of his employment.

Defendants answered the petition admitting only that a policy of liability insurance issued by General Accident to Northside was in effect at the time of the alleged accident. The defendants denied all other substantive allegations, including the fact that one of Northside's trucks was involved in the accident. On October 29 and 30, 1984, the case was tried before a jury, which returned a verdict of $170,900.00 in favor of the plaintiff and against defendants. At a subsequent hearing on the issue of expert witnesses's fees, a judgment was rendered in favor of plaintiff and against defendants for $3,781.04.

From the jury verdict, defendants appeal assigning the following errors:

1. The jury erred in finding that the plaintiff proved by a preponderance of the evidence that there was an accident; and that the accident involved these defendants.
2. Alternatively, the jury erred in finding that the plaintiff proved by preponderance of the evidence that the alleged accident caused the particular injuries and was responsible for their severity.

Plaintiff answered the appeal seeking an increase in the award of damages, plus damages for frivolous appeal.

DEFENDANTS' ASSIGNMENT OF ERROR NO. 1

Defendants contend that the jury erred in finding that there was an accident and that these named defendants were involved in that accident. Defendants reason that plaintiff failed to meet her burden of proving that a vehicle owned by Northside or driven by a Northside employee was involved in an accident on April 22, 1983.

The elements of a cause of action in tort under LSA-C.C. art. 2315 are fault, causation and damages. Weiland v. King, 281 So.2d 688 (La.1973). In tort, as in other civil cases, a plaintiff bears the burden of proving every element of his or her claim to a legal certainty and by a preponderance of the evidence. Mere possibilities or unsupported probabilities are insufficient to support a judgment. Stewart v. Hanover Insurance Company, 416 So.2d 286 (La.App. 3rd Cir.1982), writ denied, 421 So.2d 907 (La.1982). See also Fallon *61 v. Dorsett, 344 So.2d 434 (La.App. 1st Cir. 1977). This burden may be met by either direct or circumstantial evidence. Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971). Proof by a "preponderance of the evidence" exists when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

The burden is on the plaintiff to initially establish a prima facie case, and the failure to establish such a case defeats his cause of action. Edelman Systems, Incorporated v. Capitol GMC, Incorporated, 345 So.2d 99 (La.App. 1st Cir.1977), writ refused, 347 So.2d 250 (La.1977). Prima facie evidence is evidence sufficient to establish a given fact, which if not rebutted or contradicted will remain sufficient. State ex rel. Dupas v. City of New Orleans, 240 La. 820, 125 So.2d 375 (1960); Ciolino v. Castiglia, 446 So.2d 1366 (La. App. 1st Cir.1984).

Once a prima facie case has been established by the plaintiff by a preponderance of the evidence, the burden shifts to the defendant. Jordan v. Travelers Insurance Company, supra; Edelman Systems, Incorporated v. Capitol GMC, Incorporated, supra.

In the case sub judice, the evidence introduced by plaintiff to establish fault and causation consisted of: (1) plaintiff's uncontradicted testimony that her car was hit from behind at a red light by a large white flatbed truck carrying two smashed-up automobiles; (2) plaintiff's uncontradicted testimony that she was contacted by telephone by a woman called Dori Meyers, a claims adjuster for General Accident, who took her statement about the accident and had the damage to plaintiff's car appraised; and (3) an appraisal form listing the damage to plaintiff's car and the estimated cost of repair. This appraisal form, dated May 9, 1983, lists Northside as the assured, General Accident as the insurance company, and Dori Meyers as the adjuster. Further, no objection was made as to the admission of this documentary evidence.

Failure to object to hearsay or secondary evidence when admitted at trial constitutes a waiver of right to object to its admissibility and such evidence may then be considered and given probative effect. Taunton v. Cane Air, Inc., 405 So.2d 624 (La.App. 3rd Cir. 1981). Furthermore, uncontradicted hearsay testimony of a single witness admitted without objection may be considered and given probative value. Coleman v. Victor, 326 So.2d 344 (La. 1976); Gray v. Great American Indemnity Company, 121 So.2d 381 (La.App. 1st Cir.1960). The same rule applies to documentary evidence received without objection concerning the identity of the defendants. Lauman v. Cavaretta's, Inc., 427 So.2d 567 (La.App. 4th Cir.1983); Taunton v. Cane Air, Inc., supra; Wade v. Joffrion, 387 So.2d 1265 (La.App. 1st Cir. 1980).

Thus, plaintiff made a prima facie showing that the tortious conduct complained of was imputable to the fault of these particular defendants.

Defendants further contend that the rule of adverse presumption for failure to call Stanley Ruboie, the driver of plaintiff's vehicle at the time of the accident, is applicable. Defendants reason that, if this presumption is applied, plaintiff has failed to prove by a preponderance of the evidence the threshold requirement that the tortious conduct complained of was imputable to the negligence of these particular defendants.

The failure of a party to call a witness, who possesses knowledge of facts pertinent to the case and whose absence is not satisfactorily explained, results in an inference that the witness's testimony would be adverse. Succession of Lyons, 452 So.2d 1161 (La.1984); Howard v. Housing Authority of New Orleans, 457 So.2d 834 (La.App. 1st Cir.1984).

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498 So. 2d 58, 78 A.L.R. 4th 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrigan-v-freeman-lactapp-1986.