Lucius v. Stonewall Insurance Co.

215 So. 2d 843, 1968 La. App. LEXIS 4681
CourtLouisiana Court of Appeal
DecidedOctober 31, 1968
DocketNo. 2466
StatusPublished
Cited by4 cases

This text of 215 So. 2d 843 (Lucius v. Stonewall 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
Lucius v. Stonewall Insurance Co., 215 So. 2d 843, 1968 La. App. LEXIS 4681 (La. Ct. App. 1968).

Opinions

SAVOY, Judge.

This is an action for damages instituted by Samuel Doug Lucius for personal injuries sustained by his daughter, Sherry Ann Lucius, and for medical expenses sustained by him.

On the afternoon of May 2, 1967, in the Town of Hornbeck, Louisiana, Sherry Ann Lucius received minor abrasions to her face which became infected and later required medical care. The child received abrasions either by falling face-down in some gravel, or because she was struck by an automobile being driven by Grace Cross, wife of William Cross, who was insured by the Stonewall Insurance Company.

The accident occurred on a gravel driveway or turn-around in front of the Cross home. On the date of the accident the Cross vehicle was parked in front of the residence. Mrs. Cross came out of the house, got into the automobile and proceeded to make a U-turn using the circular driveway. Sherry Ann Lucius, who along with her brothers and sisters, was being taken care of by the Crosses, ran after the automobile and either fell, face-down in the gravel, or was struck by the automobile. At the time of the accident, Sherry Ann Lucius was a • child of only eighteen months.

The trial court awarded $2,500.00 to Samuel Doug Lucius for the use and benefit of the minor, Sherry Ann Lucius, and awarded $363.50 to Samuel Doug Lucius individually. Stonewall Insurance Company and William Cross effected a sus-pensive appeal. The appeal was answered by the plaintiffs who pray that the award be raised to $5,000.00.

Counsel for both defendant and plaintiff agree that there are only three major issues for this court to decide. These issues are first, whether the child fell or was struck; second, whether Mrs. Cross was negligent if the child was struck; and third, the issue of quantum.

I

Did Sherry Lucius fall or was she struck by the automobile? This question cannot be answered without going into the testimony given at the trial.

The record of the trial indicates that at the time of the accident there were some five witnesses to the accident. Of these the defendant produced William Cross, the husband-defendant, Eulla Mae Bonner and Ronald Prewitt. Grace Cross gave a statement to a representative of the defendant and then was never heard of again. Plaintiff’s only eye witness was Laura Lucius, the ten year old daughter of plaintiff.

This court is somewhat amazed at the problems that counsel encountered in acquiring evidence and testimony on which to base their respective positions. To simplify matters, it was alleged by both [845]*845counsel that there were misrepresentations of the facts by each other’s witnesses. Some of defendant’s witnesses testified that plaintiff tried to bribe them. Plaintiffs testified that defendant’s witnesses were not telling the truth because they had been threatened by the defendant, William Cross.

By his decision, the lower court evidently did not believe any of the defendant’s witnesses. He found without question that the vehicle driven by Mrs. Cross had struck the child. He stated that he based his ruling on the testimony of Laura Lucius, the ten year old sister of the plaintiff’s daughter, and on the findings of the medical expert. This expert testified that, due to the particular injuries the child received, he believed she had been struck.

This court is not at liberty to find that the lower court’s reasoning, as to who or why some of the witnesses were not telling the truth, was wrong, unless there was manifest error. Applicable here is the well established rule that findings of fact by the trial court, particularly those involving the credibility of witnesses are entitled to great weight on appeal, and that determinations made by the trial judge as to the facts will not be disturbed unless found to be clearly erroneous. Evers v. State Farm Mutual Automobile Insurance Co., 187 So.2d 217, 222 (La.App.3d Cir., 1966), and Huntsberry v. Millers Mutual Fire Insurance Co., 205 So.2d 617 (La. App.3d Cir., 1967).

As to the question of whether the child fell or was struck, we will consider ourselves bound by what the lower court found. The trial judge was able to observe the demeanor of the witnesses and therefore was a much better judge of their character, truthfulness, and general credibility. However, we shall limit our adoption of the trial court’s decision only up to the point that we rule that the automobile did strike Sherry Ann Lucius.

II

If the child was struck by the Cross vehicle, was the driver, Grace Cross, negligent?

Accepting the fact that the automobile did strike the child, we still do not know the facts surrounding the accident. With the exception of the testimony of plaintiff’s only eye witness, Laura Lucius, and the medical testimony of Dr. Fraser, the facts of how the automobile came to strike the child were not brought out.

Laura Lucius testified that just prior to the time that Mrs. Cross was getting ready to leave, she had moved to a position near the porch on the house, and that therefore she was able to witness what happened. Defendant’s witnesses, particularly Mr. Cross, testified that at the time of the accident, Laura Lucius was south of the area, near the main gravel road, throwing rocks at a railroad track. The trial court decided in favor of Laura Lucius’s testimony, and in essence, ruled that she was in a position to see and did see what happened.

Laura Lucius testified that Mrs. Cross had directed her husband to gather the children near the house because she was preparing to leave. She also testified that her sister, Sherry Ann, desired to accompany Mrs. Cross in that when Mrs. Cross got into the vehicle and started to move, Sherry Ann Lucius left the porch and ran after the automobile. She either caught up with the automobile or got in front of it, so that the right front fender and tire of the automobile struck her. The automobile then passed the point of impact, stopping some five to six feet beyond where the accident occurred.

Again, it would seem that we are discussing the question of whether or not the accident actually happened, but beyond this the facts are few. When we get into the question of negligence, we find that the record is bare. In fact, the opinion of the trial court does not mention the word [846]*846negligence, nor does he give a basis for his reasoning that the ultimate judgment should be in favor of plaintiff. There is only one instance in the record, that this court could find, where negligence could be insinuated. In the questioning of Laura Lucius, she was asked:

“Q. Do you know what part of the car struck the child — what struck your little sister?
“A. The front end.
“Q. Now had your little sister run in front of the car, is that what happened?
“A. Yes sir.
“Q. She ran in front of it?
“A. Yes sir.
“Q. What did you say?
“A. Yes sir.
“Q. Where had your little sister run from in order to get to the car?
“A. She ran in to the front end of the car.
“Q. I know, but she had run from what ? the porch ?
“A. Yes sir.
“Q. She had run from the porch?

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Related

Wade v. Railroad Maintenance & Construction Inc.
247 So. 2d 169 (Louisiana Court of Appeal, 1971)
Desormeaux v. American Mutual Liability Insurance Co.
224 So. 2d 198 (Louisiana Court of Appeal, 1969)
Clovis v. Hartford Accident & Indemnity Co.
223 So. 2d 178 (Louisiana Court of Appeal, 1969)
Lucius ex rel. Lucius v. Stonewall Insurance
218 So. 2d 901 (Supreme Court of Louisiana, 1969)

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Bluebook (online)
215 So. 2d 843, 1968 La. App. LEXIS 4681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucius-v-stonewall-insurance-co-lactapp-1968.