Messana v. Allstate Insurance Company

182 So. 2d 93
CourtLouisiana Court of Appeal
DecidedMarch 11, 1966
Docket2003
StatusPublished
Cited by13 cases

This text of 182 So. 2d 93 (Messana v. Allstate Insurance Company) 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
Messana v. Allstate Insurance Company, 182 So. 2d 93 (La. Ct. App. 1966).

Opinion

182 So.2d 93 (1966)

Emile J. MESSANA, Individually and for the Use and Benefit of his minor daughter, Carol Ann Messana,
v.
ALLSTATE INSURANCE COMPANY et al.

No. 2003.

Court of Appeal of Louisiana, Fourth Circuit.

January 10, 1966.
Rehearing Denied February 7, 1966.
Writ Refused March 11, 1966.

*94 A. J. Marciante, New Orleans, for plaintiffs-appellees.

Brierre & Stephenson, Eugene D. Brierre, New Orleans, for defendants-appellants.

Before REGAN, HALL and BARNETTE, JJ.

BARNETTE, Judge.

This is an appeal from a judgment for plaintiffs for damages arising out of an intersectional automobile collision. The appeal also is from the judgment rejecting reconventional demands of the defendants.

The accident in question occurred on a Sunday shortly after noon. The weather was clear and dry. The point of collision was the intersection of Memphis and Kenilworth Streets in the City of New Orleans. The plaintiff's automobile was moving on Kenilworth Street in a westerly direction, or from Marconi Drive toward Canal Boulevard, across Memphis Street; and the defendant was proceeding on Memphis Street in a southerly direction, or from the lake toward the Mississippi River, across Kenilworth. Both streets are approximately 32 feet wide but Memphis Street is the favored street which is so indicated by stop signs posted on Kenilworth Street.

Plaintiff's Chevrolet was struck by a Cadillac automobile owned by W. D. Negrotto, Sr., made a defendant herein, and which was being driven by his daughter, Mrs. Betty N. Alessi, a widow. The point of impact was at about the center of the intersection. The entire front portion of the Cadillac struck the Chevrolet on its right side slightly to the rear of its center. The impact or the forward motion of the Chevrolet, or a combination of both, caused the Chevrolet to be turned about three-quarters around, coming to rest on the southwest corner of the intersection partly on the curbing or sidewalk, facing in a northeasterly direction. The Cadillac came to rest at the point of impact.

Plaintiff Emile J. Messana sought damages individually on account of damage to his automobile and medical expenses for his minor daughter Carol Ann, and damages on behalf of his daughter for her personal injuries. Defendants denied negligence and alternatively pleaded contributory negligence. A separate petition in intervention seeks judgment for defendants on account of damages to the Cadillac in the amounts of $964.36 for defendant Allstate Insurance Company and $50.00 (the deductible amount) for defendant Betty N. Alessi.

After suit was filed, but before trial, Miss Messana reached the age of majority, and during trial an amendment was allowed substituting her as a party plaintiff in her own behalf.

From a judgment in favor of plaintiff Emile J. Messana for $1,052.85 and in favor of Carol Ann Messana for $1,500 and rejecting the reconventional demands of defendants, plaintiffs in reconvention, the defendants have appealed suspensively and devolutively.

The trial judge's findings of fact and reasons for judgment were dictated into the transcript at the conclusion of the trial. The following facts and conclusions were found by him:

(1) That the plaintiff Carol Ann Messana "was not negligent in any manner at the time of the accident";
(2) That she did stop in accordance with the stop sign before entering Memphis Street and looked in both directions before proceeding across;
(3) That Mrs. Betty N. Alessi, driver of the Cadillac, was negligent, based on physical facts rather than on "direct testimony" of specific acts of negligence;
*95 (4) That Mrs. Alessi was not speeding illegally, but that a speed of 20 miles per hour was negligence under the circumstances; considering the parked cars and obstructed view, she was proceeding "in an improper manner" and not keeping a proper lookout under the conditions;
(5) That Mrs. Alessi could have seen plaintiff's car much sooner than she did;
(6) That the impact of the cars was of sufficient force to cause plaintiff's car "to be turned around and driven on the sidewalk";
(7) That plaintiff's car preempted the intersection.

We are fully aware of the well-established rule of jurisprudence that great weight must be given to the findings of fact of the trial court and that except for manifest error such findings should not be disturbed. However, after a careful analysis of the testimony, we are unable to agree fully with the trial judge on all facts found by him or in the legal conclusions which he has drawn from them. See Hayes v. Viola, 179 So.2d 685 (La.App. 4th Cir. 1965); Johnston v. Bearden, 127 So.2d 319 (La.App. 2d Cir. 1961); Dickinson v. City of Minden, 130 So.2d 160 (La.App. 2d Cir. 1961); Owens v. Felder, 35 So.2d 671 (La.App. Orleans 1948).

Other than the drivers of the two cars and a child passenger in the defendant's car, there were two witnesses, Asa T. Sibley and his son-in-law Stanley Abadie, who actually witnessed the accident. The other witness was a police officer who came to the accident scene for the purpose of making an investigation. Except for measurements and a description of the scene, obstructions of view, and distance of vision, his testimony is a repetition of statements of the drivers and witnesses Sibley and Abadie.

Sibley and Abadie were proceeding on Kenilworth Street approaching the plaintiff from the opposite direction. Before they reached the intersection of Memphis Street, they observed Miss Messana and were concerned about the problem of passing her car in the narrow street lined with parked automobiles. They each testified that Miss Messana observed the traffic sign and did come to a complete stop before entering the intersection. They saw the collision from a point estimated by them at approximately 100 feet from Memphis Street at which point they turned into a service alley and did not return to the accident scene until about 15 minutes later. Their explanation for leaving the scene without stopping to investigate or render possible needed assistance was that Sibley had an urgent appointment to meet. After filling his appointment they returned and identified themselves and gave a statement to Officer Sewell.

The significant testimony of Sibley and Abadie relating directly to the accident is that Miss Messana stopped before entering the intersection, that she then proceeded into Memphis Street in a normal manner and speed, and that there were several cars parked on both streets and the view was obstructed. Speaking of the Cadillac (defendant's car) and particularly when he first saw it and concerning its speed, Sibley said, "* * * but as far as judging the speed, well, I'm going to say the Cadillac, because that's all I know about it, I couldn't tell because it come [sic] out from these parked cars and I didn't see it until it hit." Questioned further he said, "Well, I don't know whether it was faster than the speed limit or not, but it appeared to me it was going fairly fast." Abadie said the Cadillac "* * * appeared to be moving better than twenty miles an hour * * *." He later said he had seen it "[j]ust a split second before [the impact]."

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Bluebook (online)
182 So. 2d 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messana-v-allstate-insurance-company-lactapp-1966.