Mathews v. Employers Mutual Fire Insurance

180 So. 2d 38, 1965 La. App. LEXIS 4068
CourtLouisiana Court of Appeal
DecidedOctober 28, 1965
DocketNo. 10435
StatusPublished
Cited by5 cases

This text of 180 So. 2d 38 (Mathews v. Employers Mutual Fire Insurance) 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
Mathews v. Employers Mutual Fire Insurance, 180 So. 2d 38, 1965 La. App. LEXIS 4068 (La. Ct. App. 1965).

Opinion

HARDY, Judge.

This is an áction ex delicto in which plaintiff seeks recovery of damages in the nature of personal injuries. Plaintiff husband also filed suit for the recovery of medical expenses and loss of earnings. The two suits were consolidated for purposes of trial and appeal. After trial judgments were rendered in favor of plaintiff wife and against the named defendants in the principal sum of $16,000.00, and in favor of the plaintiff husband and against the named defendants in the principal sum of $6,000.00, which judgments provided for the apportionment of the amounts recovered by plaintiffs between the insurance companies named as defendants upon the basis of liability of the respective insurers.

From the judgment in the suit of plaintiff wife both plaintiff and defendants have appealed. In the suit of plaintiff husband the defendants have appealed and plaintiff has answered the appeal, praying for an increase in the amount of the judgment with respect to the claimed damages for loss of earnings, past, present and future, accruing to the community.

The accident which gave rise to this litigation occurred on Highway 1 in Caddo Parish, after dark, on December 1, 1962. At the time northbound traffic was unusually heavy by reason of the fact that a large number of people had attended the Christmas lights ceremony in Natchitoches and were returning to Shreveport. Plaintiff wife was a passenger in a 1962 Ford automobile owned by McClellan Oil Company and operated by her husband, which was traveling north. While in the course of negotiating a left turn, this vehicle was struck from the rear by a 1962 Buick automobile owned by Mrs. Ada Hawthorne and driven by the defendant, Bill M. Sutton. Plaintiff wife named as principal defendants Mrs. Hawthorne, owner of the Buick, Bill Sutton, the driver, and their respective insurers, Employers Mutual Fire Insurance Company and American Insurance Company. By alternative pleadings the plaintiff wife asserted claims against Hardware Mutual Casualty Company, insurer of McClellan Oil Company, and Central Mutual Insurance Company, insurer of her husband. In response to motion for summary judgment, plaintiff’s suit as against Central Mutual was dismissed, and the judgment, after trial on the merits, dismissed plaintiff’s claims as against Hardware Mutual. No issue is made as to the discharge of these named defendants from liability.

The appeal of plaintiff wife complains of error on the part of the trial court in failing to allow an expert witness fee on behalf of Robert L. Trewatha, who was tendered as an expert statistician and testified as a witness for plaintiff, and further error in the award of damages by reason of failure to take into consideration the alleged permanent impairment of the normal physical function of plaintiff’s back, neck and nervous system, which substantially disables her from practicing her profession as a graduate, licensed Registered Nurse, resulting in a loss of earning capacity, and [40]*40permanent disablement from performance of her duties as a housewife and mother.

We find it necessary to discuss, briefly, the failure to allow expert fees on behalf of Dr. Trewatha in the wife’s suit. The testimony of this witness was primarily concerned with a development of the wife’s loss of earnings, and, therefore, was properly part of the companion case involving the claim of the plaintiff husband in which an expert fee of $50.00 on behalf of Dr. Trewatha was allowed and taxed as costs. No claim is made in the husband’s suit for an increase in the amount of this fee, either by an appeal or answer to defendant’s appeal. It follows that the judgment refusing to allow the expert witness fee in the wife’s suit was correct.

On the second point raised by plaintiff’s appeal, we are of the opinion that the diminution of earning capacity is comprehended in the claim of plaintiff husband for loss of earnings, and, therefore, should not be allowed as an item of damages on behalf of the wife.

After careful examination of the record we have reached the conclusion that the allowance made by the district judge for pain and suffering included consideration of the consequent disability to perform household duties and was adequate for such purposes.

Defendant’s appeal specifies error on the part of the trial court in the findings of negligence on the part of defendant, Sutton; in exonerating plaintiff’s husband from negligence; in imputing the negligence of Sutton as driver to the defendant, Mrs. Hawthorne, as owner, and in granting excessive awards.

It is necessary to recapitulate the facts which we find to have been established and which have a bearing upon the negligence of the drivers of the two cars involved in the accident.

Immediately prior to the occurrence of the collision, a steady stream of vehicular traffic was moving north on Highway 1 toward Shreveport, and there was little traffic proceeding in the opposite southbound direction. The nature of the traffic was described by some of the witnesses as being almost bumper to bumper. Shortly after passing the community of Caspiana, Mathews, driver of the Ford automobile in which his wife was riding as a passenger, began making observation for the T-intersection of what is known as the Ellerbe Road, which enters Highway 1 from the west, and, for this purpose, he substantially slowed the speed of his vehicle to about 30 miles per hour from the speed of 45 or 50 miles per hour at which the long line of cars had been more or less steadily moving. This decrease in the speed of the Mathews car resulted in an increase of the interval which separated it from cars ahead to such a degree as to have permitted properly operated cars to the rear to make a passing movement. Mathews observed what he thought was the intersection of the Ellerbe Road, but which, in fact, was a private driveway leading into Highway 1 from the west and proceeded to give a left turn signal by means of the directional tail-light indicator. According to Mathews’ testimony, he made careful observation both to the front and rear, observed no approaching nor overtaking traffic, and at a speed of some 15 to 20 miles per hour began his left turn, which was almost completed when the left rear fender and bumper of his car was struck by the Buick automobile driven by Sutton. Mathews steadfastly insisted in his testimony that the Buick car was not in the passing lane either when he made observation or when he actually began his left turn operation. The material aspects of Mathews’ testimony were corroborated not only by his wife, who was seated beside him on the front seat, but also by a completely disinterested witness, James W. Lee, driver of the car which was immediately following. The witness, Lee, testified that Mathews slowed his car, gave a left turn blinker light signal, and that upon observing this action he turned his car slightly to the right in order to give following traf[41]*41fic an opportunity to better observe Mathews’ turn signal, but that as Mathews had almost completed his turn, the Buick car passed Lee’s car at a rapid rate of speed and struck the Mathews vehicle.

Sutton testified that he observed an opportunity to pass the cars ahead of him and gain distance because of the open interval on the east side of the highway ahead of Mathews’ car; that he turned into the passing west lane and was unable to avoid the collision with the Mathews’ car, which turned to the left directly in his path. To some extent this testimony was supported by Mrs. Hawthorne and by two adult passengers, Mr. and Mrs. Gordon Hinton, who were on the back seat.

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Bluebook (online)
180 So. 2d 38, 1965 La. App. LEXIS 4068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathews-v-employers-mutual-fire-insurance-lactapp-1965.