Morris v. Alfonso

195 So. 2d 702
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1967
DocketNo. 6871
StatusPublished

This text of 195 So. 2d 702 (Morris v. Alfonso) 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
Morris v. Alfonso, 195 So. 2d 702 (La. Ct. App. 1967).

Opinion

BAILES, Judge.

This is a tort action brought by plaintiff to recover damages ex delicto arising out of a vehicular accident. The plaintiffs are-Mrs. Willie Jean Morris and her collision insurer, Twin States Insurance Company. The defendants are Sam Alfonso and Gulf' Bottlers of Baton Rouge, Inc., and their liability insurer, Travelers Insurance Company.

The trial court rendered judgment in favor of the plaintiffs and against all defendants, in solido. Mrs. Morris was awarded! damages in the amount of $3,503.98, and Twin States Insurance Company was awarded judgment in the amount of $144.52.. From this judgment, all defendants perfected a suspensive appeal, and the plaintiff, Mrs. Morris, appealed devolutively. We find the judgment appealed from is correct as to liability, however, it is excessive as to quantum.

The accident between plaintiff’s and defendants’ vehicle occurred on U. S. Highway 51 about one mile south of Kentwood, Louisiana, on September 3, 1963. Plaintiff was driving her new 1963 Dodge sedan south and was following a soft drink truck owned by Gulf Bottlers of Baton Rouge, Inc., and driven by Sam Alfonso. These two vehicles were preceded by another automobile driven by a Mr. Amos Cutrer. The Cutrer vehicle turned right into a private driveway at approximately the same time the plaintiff’s vehicle entered the passing lane preparatory to passing the beverage truck.

The plaintiff contends that when the front bumper of her automobile was almost even with the rear bumper of the beverage truck, the truck suddenly swerved or veered into the path of her automobile striking it [704]*704on the right front fender. On the other hand, it is the defendants’ position that as Alfonso slowed his truck to allow the Cutrer vehicle to make its turn, he, Alfonso, saw plaintiff’s vehicle behind his truck out of control and zigzagging on the highway. Alfonso’s testimony is to this effect. Further, they contend that Alfonso attempted to pull to his right to give plaintiff room to pass hut the right front fender of plaintiff’s vehicle hit the left rear bumper of the truck.

There were no witnesses to the accident except the drivers, Mrs. Morris and Sam Alfonso, and a young woman by the name of Erma Bellazer who was seated on the front porch of a residence a short distance from the highway. No law enforcement officer was notified or called to the scene to investigate the accident. Consequently, we do not have the benefit of the usual facts, such as point of impact, skid marks, debris, condition of highway, width of highway and shoulders and other like information surrounding the accident, ordinarily ascertained in an official investigation.

Mr Alfonso testified that he merely touched his brakes to slow his truck to allow the Cutrer automobile time to complete its turn, and that it was not necessary for him to go into the opposite lane. He further testified that he was aware of the Morris vehicle to his rear just a second or so before it struck him, and that his speed was between 30 and 35 mph.

Mrs. Morris testified that she was driving about 40 to 45 mph just prior to the collision. She stated that as she pulled into the left lane to pass the truck and proceeded to the rear of the truck, the truck, without any warning or signal, suddenly swerved into her lane. After the impact, she managed to stop her automobile on the left shoulder. Mrs. Morris’s testimony is supported by that of the young woman who was sitting on the front porch of the nearby residence. This witness, Erma Bellazer, testified that it was necessary for the beverage truck, because of the closeness of it to the Cutrer vehicle, to turn into the left lane to keep from hitting the Cutrer vehicle when it turned into the driveway. At this time, the Morris vehicle had already begun its passing maneuver and was entirely in the left lane. She testified that the truck pulled into the left lane in front of the Morris automobile, and that prior to the time Mrs. Morris attempted to pass the beverage truck she had been driving in a straight line and had not been swaying in the road.

We find no merit in defendants’ first specification of error that the trial court was in error in concluding that Sam Alfonso drove or veered into the passing lane occupied by Mrs. Morris.

The trial court found that the plaintiffs had sustained the burden of proof of establishing that the accident was caused solely and entirely by the beverage truck driver, Sam Alfonso, invading or veering into the passing lane at a time when it could not be done safely. It is our conclusion, after a careful study of the record, that this accident was caused entirely by the negligence of defendant, Sam Alfonso, which was the sole proximate cause of the accident.

The pronouncement of the court in the case of Crane v. London (La.App., 1963) 152 So.2d 631, is apropos here:

“[1-4] Principles are well established in the jurisprudence, as well as by statute, that a motorist, before turning from a direct line upon a highway, shall first see that such movement can be made in safety; that whenever the operation of any other vehicle may be affected by such movement, the motorist shall give a signal plainly visible to the drivers of such other vehicles of his intention to make the turn.”

Also see Crier v. Marquette Casualty Co. (La.App., 1964) 159 So.2d 26; Myles v. Creuzot (La.App., 1964) 166 So.2d 533, 535; and Cartimiglia v. Manuel (La.App., 1952) 55 So.2d 620.

[705]*705Passing- now to the question of quantum we affirm the trial court’s award of $144.52 to plaintiff, Twin States Insurance Company, and the award of $100.00 to plaintiff, Mrs. Willie Jean Morris; these amounts, collectively represent the amount of physical damage done to the Morris vehicle. There is no dispute as to the correctness of this amount.

Defendants assign as their second specification of error that the award to the plaintiff of the sum of $3,000 is excessive. While contending that there is no liability, defendants’ position is that if the plaintiff, Mrs. Morris, is entitled to judgment, the amount for pain and suffering and injury to her hack should not exceed $2,000.

The plaintiff argues that the award of the trial court is grossly inadequate and should he increased to $15,000. The numerous cases cited by the plaintiff are readily distinguished from the facts of the instant case. It would serve no useful purpose to discuss the distinctions. Tire award to be made in any case must be justified on the facts peculiar to that case.

The record reflects that on the afternoon of the accident, the plaintiff consulted Dr. Corbin Faller, a general practitioner in Kentwood. He stated that he did not feel qualified to evaluate her injuries since she had had a previous operation on her back and he referred her to Dr. Albert Dewayne Foreman since he had performed that operation. It was his opinion at that time that the plaintiff had not injured herself but he later expressed the opinion that she had sustained an acute lumbo-sacral strain.

The plaintiff consulted Dr. Foreman, a neuro-surgeon practicing in Baton Rouge, on September 5, 1963, November 7, 1963, December 8, 1964, and January 26, 1965. He diagnosed her condition as being a sprain of the back. She had undergone an operation in 1956 to alleviate a ruptured disc of the twelfth thoriac joint and he thought that she might have had a rccur-rence of the ruptured disc.

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Related

Crier v. Marquette Casualty Company
159 So. 2d 26 (Louisiana Court of Appeal, 1964)
Crane v. London
152 So. 2d 631 (Louisiana Court of Appeal, 1963)
Gaspard v. LeMaire
158 So. 2d 149 (Supreme Court of Louisiana, 1963)
Ballard v. National Indemnity Company of Omaha, Neb.
169 So. 2d 64 (Supreme Court of Louisiana, 1964)
Cartimiglia v. Manuel
55 So. 2d 620 (Louisiana Court of Appeal, 1951)
Myles v. Creuzot
166 So. 2d 533 (Louisiana Court of Appeal, 1964)

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195 So. 2d 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-alfonso-lactapp-1967.