Johnmeyer v. Creel

499 So. 2d 571
CourtLouisiana Court of Appeal
DecidedDecember 3, 1986
Docket18297-CA
StatusPublished
Cited by18 cases

This text of 499 So. 2d 571 (Johnmeyer v. Creel) 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
Johnmeyer v. Creel, 499 So. 2d 571 (La. Ct. App. 1986).

Opinion

499 So.2d 571 (1986)

John W. JOHNMEYER and Carolyn R. Johnmeyer, Plaintiffs-Appellees,
v.
Solomon D. CREEL, William Kenneth Bobbitt, d/b/a B & B Logging, and National Indemnity Company, Defendants-Appellants.

No. 18297-CA.

Court of Appeal of Louisiana, Second Circuit.

December 3, 1986.

*572 Bodenheimer, Jones, Klotz & Simmons by Frank H. Thaxton, III, Shreveport, for defendants-appellants.

Plummer, Means & Burgess by Robert E. Burgess, Mansfield, for plaintiffs-appellees.

Before SEXTON and LINDSAY, JJ., and HEARD, J. Pro Tem.

SEXTON, Judge.

The defendants appeal an adverse judgment stemming from an automobile accident in which plaintiff John W. Johnmeyer's pickup truck collided with an 18-wheel logging truck being driven by Mr. Solomon D. Creel. Mr. Creel, as well as the owner of the logging truck, Kenneth Bobbitt d/b/a B & B Logging, and his insurer, National Indemnity Company, were made defendants. We reverse in part, amend in part, and affirm as amended.

The accident which gave rise to this litigation occurred on January 18, 1984, in downtown Mansfield, Louisiana. The site is a "T" intersection between Gibbs Street and Washington Avenue. Plaintiff, Mr. Johnmeyer, operating a pickup truck, entered the intersection where his truck was struck by the rear portion of defendant's trailer.

Plaintiff, Mr. Johnmeyer, alleged that as a result of the accident he sustained back and shoulder injuries, suffered lost profits from missed business opportunities, incurred expenses for repair of his truck and expenses for installation of a "wet kit" to his truck. Mrs. Johnmeyer, although not involved in the accident, joined in the suit to recover loss of consortium, service and society as a result of her husband's injuries.

Mr. Johnmeyer testified that the traffic light changed to green as he approached the intersection. As he entered the intersection, he observed the logging truck coming from the south. He stopped his truck and was attempting to put it in reverse gear when the trailer of the logging truck impacted with the front end of his pickup.

Mr. Creel testified that as he was approaching the intersection, the traffic light changed to caution. He indicated that he saw a brown pickup truck coming, noticed it wasn't going to stop, and attempted to avoid the accident by switching lanes.

Officer Atkinson of the Mansfield Police Department testified that when he responded to the wreck he found no witnesses other than the parties involved. He stated that Mr. Johnmeyer told him that he was proceeding with a green light into the intersection when the 18-wheeler swerved to miss him but the trailer tires caught the front of his truck. He also indicated that Mr. Creel stated that the light turned too quickly and he was unable to stop his vehicle. The officer received no approximate speed estimations from either party. He issued Mr. Creel a citation at the scene for running the red light.

The trial court ruled that the accident was a result of the negligence of Mr. Creel *573 and found him one hundred percent at fault. Judgment was awarded in favor of Mr. Johnmeyer in the lump sum amount of $36,963.69, which included general damages, lost profits, medical expenses and installation of a "wet kit" to his truck. Mrs. Johnmeyer apparently recovered $1,500 for loss of consortium which we assume was included in the total judgment.[1] The trial court rejected Mr. Johnmeyer's claim for repairs to his old truck.

Because the trial court assigned a lump sum judgment, we have had difficulty determining the award for each item of damages in this case. At the conclusion of the evidence and after ruling from the bench on the question of fault, the trial court stated that it was awarding "the damages that he's prayed for in every respect on the lost profits, as well as the expenses in hiring Mr. Prudhomme to install his wet kit." The court also stated that the medical expenses "are recoverable" and asked for authorities "on an award for pain and suffering and/or loss of consortium."

Plaintiff prayed for total lost profits in the amount of $14,714.00, medical expenses in the amount of $399.69 and "wet kit" installation in the amount of $350.00. The sum of these items, $15,463.69, when subtracted from the total judgment of $36,963.69 leaves $21,500.00. Both sides agree in their briefs to us that $1,500.00 was awarded as loss of consortium, and the defendants assert in brief that $20,000.00 was awarded as general damages.

Based on the trial court's statements at the conclusion of the evidence, the plaintiffs' prayer, and the statements in brief, we determine that $20,000.00 of the lump sum judgment was awarded for medical expenses and $1,500.00 was awarded for loss of consortium, as well as the sums previously referenced for lost profits, medical expenses and "wet kit" installation. We evaluate the appeal on that basis.

Defendants maintain on appeal that the trial court was in error in finding Mr. Creel one hundred percent negligent in the cause of the accident and in its refusal to find Mr. Johnmeyer comparatively negligent. They appeal as well the excessiveness of the general damage award and the special damages. They further contend that the court was in error in concluding that there was evidence to support an award for loss of consortium.

Mr. and Mrs. Johnmeyer do not appeal or answer, but rather contend that the judgment of the trial court is correct.

ASSESSMENT OF FAULT

The defendants urge that the trial court erred in assigning one hundred percent of the fault of the accident to Solomon Creel and thereby alloting no negligence whatsoever to Mr. Johnmeyer. It is apparent from the trial court's ruling that it adjudged Mr. Creel solely responsible for the collision and found that Mr. Johnmeyer exercised reasonable caution commensurate with the green light he enjoyed.

In this regard, the defendants contend that although the trial court may have been reasonable in finding that Mr. Creel came through the intersection on a red light, the court should have found Mr. Johnmeyer comparatively negligent in that he failed to exercise caution in maintaining a proper lookout when entering the intersection. Defendants cite Spencer v. Hynes, 452 So.2d 1291 (La.App. 3d Cir.1984), and Delise v. Metropolitan Property and Liability Insurance Company, 459 So.2d 729 (La. App. 4th Cir.1984). Although these cases do involve intersectional collisions, the first deals with failure to yield the right of way to an ambulance and the second involved a stop sign as opposed to the semaphore signal which controlled the intersection in the present case. We find these cases inapplicable on their facts.

To the contrary, we note and agree with the ruling in Johnson v. State, 450 So.2d 386 (La.App. 1st Cir.1984), writ denied 450 *574 So.2d 1311 (La.1984), which, under circumstances similar to the case at bar, found a motorist free from negligence where he was favored by a green light and observed a vehicle coming across the intersection in front of him when he was between 50 and 100 feet from the intersection. He braked but was unable to avoid the accident. The Johnson court, at pages 390-391, approved the judgment of the lower court in the following terms:

"Our jurisprudence provides that a motorist approaching an intersection controlled by semaphore signals, who is favored by a green light, is entitled to assume that traffic approaching the intersection from either side on a red light will comply with the red light and respect his right-of-way.

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Bluebook (online)
499 So. 2d 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnmeyer-v-creel-lactapp-1986.