Lacour v. Travelers Insurance Co.

149 So. 2d 245, 1963 La. App. LEXIS 1274
CourtLouisiana Court of Appeal
DecidedJanuary 28, 1963
DocketNo. 731
StatusPublished

This text of 149 So. 2d 245 (Lacour v. Travelers Insurance 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
Lacour v. Travelers Insurance Co., 149 So. 2d 245, 1963 La. App. LEXIS 1274 (La. Ct. App. 1963).

Opinion

CULPEPPER, Judge.

This damage suit arises out of a head-on collision between plaintiff’s Corvair automobile and a 1954 Chevrolet insured [246]*246by defendant and driven by Conrad Slate, who died as a result of injuries received in the crash. After trial on the merits, the district judge held in favor of the plaintiff and the intervenor. Defendant appealed. Plaintiff answered the appeal contending that the lower court’s judgment should be amended so as to allow an expert witness fee of $100 to Mr. Alvin Doyle, Jr., who testified as an expert in accident analysis.

The first issue, of which we must dispose, is the admissibility in evidence of the deposition upon written interrogatories of defendant’s witness, Dan E. Rife, a member of the U. S. Navy. Rife was one of three hitchhiking sailors who were standing on the side of the highway, SO or 60 feet from the point where the collision occurred. His deposition was taken before a United States Naval officer, aboard his ship. At the outset of the trial, plaintiff moved to suppress the deposition and delete it from the record on two grounds: First, that the Naval officer taking the deposition did not attach to it “the copy of the notice and the interrogatories received by him” in compliance with LSA-C.C.P. Art. 1472. The first paragraph of the deposition states that it is taken in accordance with the order of court in this case and that “answers herein correspond to question numbers in the above document.” The interrogatories are not actually attached to the deposition which was mailed by the Naval officer to the clerk of court, but a copy of the interrogatories does appear in the record. Plaintiff’s second grounds for suppression of the deposition is that the officer before whom the deposition was taken did not personally seal it in an envelope and mail it to the clerk of court as required by LSA-C.C.P. Art. 1456. The deposition was taken before a Lt. Underhill, but the letter of transmittal mailed to the clerk of court is signed by Lt. Commander Dietrich, Commanding Officer of the ship.

Defendant contends, and we think correctly, that under the facts of this case plaintiff has waived his objections, under the provisions of LSA-C.C.P. Art. 1427 which reads as follows:

“Objections as to completion and return of deposition
“Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared,, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Articles 1451 through 1473 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.”

The record shows that on March 7, 1962r plaintiff received notice of defendant’s intention to take the deposition by written interrogatories, but plaintiff did not choose to serve cross-interrogatories. LSA-C.C. P. Art. 1471. The deposition was taken on March 24, 1962. Plaintiff admits that on about April 1, 1962 he received notice from defendant that the deposition had been filed with the clerk. LSA-C.C.P. Art. 1472. After filing, the deposition was available for inspection by anyone under the provisions of LSA-C.C.P. Art. 1456. Actually, the record shows that on April 6, 1962 defendant’s counsel wrote a letter to plaintiff’s attorney suggesting that if he wanted to see the deposition he could ask for the record. This case was tried on May 2, 1962. Plaintiff’s counsel states that a few minutes before the trial started he examined the record and for the first time noted the irregularities in the deposition of which he complains and at that time made an oral motion to suppress the deposition.

Under these facts, it is our opinion that plaintiff has waived the objections to the deposition because he did not file a motion to suppress “with reasonable promptness after such defect is, or with due diligence might have been, ascertained.” LSA-C.C.P. Art. 1427. The purpose of this article, which is taken from Federal Rule 32, is to render technical objections, based [247]*247on errors and irregularities in depositions, unavailable at the trial, so as to prevent undue delay of the proceedings. Moore’s Fed.Prac. 1951 Ed. Vol. 4, page 2202-2203, Sec. 32.02; Vol. 2A Barron & Holtzoff, Federal Practice and Procedure, 1961 Ed., page 275, Sec. 754; Leon D. Hubert, Jr., The New Louisiana Statute on Depositions and Discovery, 13 La.Law Review, 181— 183. Plaintiff had almost a month before the trial within which to examine the deposition and move to suppress it. His failure to do so constitutes a waiver of these purely technical objections as to form, under the clear language and intent of LSA-C.C.P. Art. 1427. We, like the trial judge, have considered the deposition as part of the evidence.

Turning now to the merits, the issues are factual. The accident occurred after dark at about 6:25 p. m. on February 1, 1961. The weather was dry. The scene of the accident is just north of Oakdale, Louisiana on U. S. Highway 165, which runs north to Alexandria. The vehicles collided head-on, right front to right front, in the north bound lane of traffic. Strangely enough, the substantial issue is which automobile was proceeding north, and therefore in its own proper lane of traffic at the time of the collision.

Defendant argues forcefully that the trial judge committed manifest error in finding that defendant’s two eye-witnesses to the accident, Dan E. Rife and Eddie Douglas, were unworthy of belief. In a written opinion, the district judge stated frankly that he found the accident occurred according to the version given by the plaintiff, Dr. Lacour, and that he did not believe the defendant’s witnesses. The issue for this court is to determine whether the district judge was manifestly erroneous. It is a close question, requiring a discussion of the evidence.

Dr. Lacour testified that on the day of the accident he made professional house calls until some time between 5 and 6 o’clock p. m.; that he then went home to bathe and shave in preparation for Bishop Greco’s reception for the staff of St. Francis Cabrini Hospital, being given at 7:30 p. m. at Maryhill Seminary near Alexandria, Louisiana; that he left home between 6:00 and 6:30 p. m. and was driving in a northerly direction toward Alexandria, at a speed of 30 to 35 miles per hour, when he saw the automobile of defendant’s insured coming south cross over into the north bound lane, as if going to the east shoulder of the highway; that on realizing defendant’s insured was not going to the east shoulder, he tried to cut his automobile to the left at the last moment but defendant’s insured cut to the right and the two vehicles collided right front to right front in the north bound lane of traffic.

Plaintiff’s witnesses, Mrs. A. E. Lee and Don Allen, corroborated his testimony by stating that he made professional calls to their respective homes at about 5:00 p. m. on the day of the accident.

Dr. Lacour’s wife corroborated his testimony that he left home between 6:00 and 6:30 p. m. to attend the reception. Dr. Lee Jarrell of Alexandria, Louisiana, testified that he had planned to meet Dr. Lacour in Alexandria to go to the reception. Certainly, the evidence is conclusive that Dr. Lacour had planned to go north to Alexandria to the reception and that he left Oakdale at an hour consistent with the time required to make the trip.

Plaintiff also introduced in evidence the testimony of Mr. Alvin Doyle, Jr., who qualified as an expert on accident analysis.

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149 So. 2d 245, 1963 La. App. LEXIS 1274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacour-v-travelers-insurance-co-lactapp-1963.