Mull v. Burkhardt

252 So. 2d 475, 1971 La. App. LEXIS 5554
CourtLouisiana Court of Appeal
DecidedJuly 15, 1971
DocketNo. 4527
StatusPublished
Cited by3 cases

This text of 252 So. 2d 475 (Mull v. Burkhardt) 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
Mull v. Burkhardt, 252 So. 2d 475, 1971 La. App. LEXIS 5554 (La. Ct. App. 1971).

Opinion

BARNETTE, Judge.

This ■ is an appeal by the plaintiffs, Thelma Mull, wife of, and Frank Mull, from a judgment rejecting their demands for damages for personal injuries sustained by Mrs. Mull and special damages and dismissing their suit.

This action arose out of an automobile collision in St. Bernard Parish on Louisiana Highway 39 at or near the intersection of Norton Avenue on March 14, 1965. All the vehicles involved or alleged to have been involved were traveling in the direction of New Orleans on Highway 39. We will identify them in the order in which they were proceeding. The first vehicle was a Jeep driven by Authery Greer which he had borrowed to tow the second car, a Corvair owned by him, and at the time in question occupied by Lee Perry. The third vehicle was a 1952 Buick driven by the plaintiff Mrs. Thelma Mull. The fourth vehicle in the procession was a 1957 Chevrolet driven by Joseph Anthony Burk-[477]*477hardt, Jr.; a Mrs. Caroline Hemelt was a passenger in that car. Whether or not there was a fifth automobile is an issue of fact. There was an alleged hit and run car described by some of the witnesses as a dark colored, brown or maroon old Chevrolet bearing a license number ending in “B-153”.

The only factual issue in the case is whether the alleged fifth car (hit and run) did in fact strike the fourth car (Burk-hardt) thus setting in motion the sequence of collisions. We will discuss this factual issue more fully later in this opinion.

It is not disputed that the fourth car (Burkhardt) struck the third car (Mull) with great force and that it (the Mull Buick) then traveled approximately 66 feet and struck the Corvair (No. 2) in tow by the Jeep. After impact with the Mull Buick, the Burkhardt Chevrolet veered off to the right some 51 feet coming to rest off the highway on the property of a funeral home.

The plaintiff Mrs. Mull sustained physical injuries and her automobile was severely damaged. She brought suit, in which her husband joined for special damages, against Burkhardt and Grain Dealers Mutual Insurance Company, the liability insurer of the Burkhardt automobile. In the alternative, Mrs. Mull sought recovery against her own insurer, Travelers Indemnity Company, under the uninsured motorist provision of her husband’s policy coverage on the Buick. The reason for this alternative suit was that defendant Burk-hardt denied fault on the basis of his having been struck by a hit and run vehicle. Travelers answered denying liability on the basis that there was no physical contact with Mrs. Mull or the automobile in which she was riding as required by the policy provision and, secondly, that the fact of an alleged hit and run vehicle was not proven. Additionally Travelers raised the technical defense of notice not having been given as required by the policy.

Mrs. Caroline Hemelt brought suit against Burkhardt’s insurer, Grain Dealers, from whom she sought recovery of damages for the injuries she sustained. We have no knowledge of the allegations in that suit, nor do we know its outcome. We make reference to it only to explain the introduction into evidence in this suit on behalf of the defendant Grain Dealers of Mrs. Hemelt’s deposition taken in that suit.

The trial judge in “REASONS FOR JUDGMENT” first found that Travelers was not liable under the uninsured motorist provision of its policy because there was no proof of physical contact of the alleged hit and run vehicle with Mrs. Mull or her automobile. For the reasons which will follow we find it unnecessary to discuss that issue. With respect to the other issues, his reasons for judgment are as follows:

“The testimony clearly indicates that Mrs. Mull was either stopped or was going at a very slow rate of speed when her automobile was rear-ended with great force by the automobile driven by Joseph A. Burkhardt, Jr. The Court is of the opinion that Mrs. Mull cannot be charged with any contributory negligence, therefore the sole question for the Court’s determination is whether or not Mr. Burkhardt was negligent.

“Mrs. Mull has testified that she saw the Burkhardt automoble traveling, as she states, ‘at a very rapid rate of speed,’ prior to its having collided with the rear end of her car. She does not, however, recall having seen any other automobile following that of Mr. Burkhardt.

“Mr. Burkhardt’s testimony is that he was following Mrs. Mull’s automobile when his automobile was struck in the rear by a 1954 Chevrolet automobile; that he immediately lost control of his automobile because he became unconscious; that his automobile struck the automobile of Mrs. Mull and then left the roadway to the right, stopping in, or on, either a grass shoulder of the road or a portion of someone else’s property.

[478]*478“The deposition of Mrs. Caroline Hemelt, taken on December 28th, 1966, has been introduced in evidence in lieu of the testimony of Mrs. Hemelt. According to the deposition of Mrs. Hemelt she was a passenger in the automobile of Mr. Burkhardt, and it is her testimony that the automobile of Mr. Burkhardt was struck in the rear before his automobile struck that of Mrs. Mull.

“Mr. Authery Greer, obviously a disinterested witness, has testified that he did not know anyone connected with the case and had not talked to anyone about the case. He was driving a jeep and towing a Corvair automobile which belonged to him and had quit running. He.was driving the jeep ahead of the Buick automobile being driven by Mrs. Mull. He either stopped or was about to stop for a red light when the Corvair automobile was struck in the rear by the Buick automobile being driven by Mrs. Mull, after it in turn had been struck in the rear by the automobile being driven by Mr. Burkhardt.

“Mr. Greer has testified that after he got out of his jeep he saw the automobile of Mr. Burkhardt on the grass plot, and that as he approached it he saw a 1954 Chevrolet, about one-half to one full car length behind the Buick Automobile of Mrs. Mull, on the roadway. He then left the scene of the accident to telephone, and on his return the 1954 Chevrolet was not at the scene of the accident.

“Mr. Burkhardt has testified that he was unconscious for a short while following the impact, and that he did not see the automobile that struck him when he regained consciousness.

“It is plaintiff’s contention that had the automobile of Mr. Burkhardt been struck in the rear by a hit-and-run automobile, as contended by Mr. Burkhardt, that Mr. Burkhardt’s automobile would have shown damage both to the front and to the rear. It is contended that the photographs, which were taken supposedly of Mr. Burkhardt’s automobile, showed material damage to the front but no damage to the rear. Presupposing that the pictures, which were taken by the son of Mrs. Mull, are actually pictures of the automobile of Mr. Burkhardt, they clearly show severe damage to his automobile but show little, if any, damage to the rear.

“The report of the State Police clearly indicates that there was no damage to the jeep, there was damage to the rear of the Corvair coupe; that there was damage to the front and rear of the 1952 Buick; and that there was damage to the front and rear of the 1957 Chevrolet, the latter being the automobile driven by Mr. Burk-hardt.

“The testimony of Mrs. Hemelt is to the effect that the automobile driven by Mr. Burkhardt was going less than five miles an hour. She stated that they were ‘practically stopped,’ and that had they not been hit the automobile would have made a normal stop.

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Related

Springer v. Government Employees Ins. Co., Inc.
311 So. 2d 36 (Louisiana Court of Appeal, 1975)
Brewer v. Delouise
285 So. 2d 878 (Louisiana Court of Appeal, 1973)
Mull v. Burkhardt
254 So. 2d 466 (Supreme Court of Louisiana, 1971)

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Bluebook (online)
252 So. 2d 475, 1971 La. App. LEXIS 5554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mull-v-burkhardt-lactapp-1971.