Schackai v. Tenneco Oil Co.

436 So. 2d 729
CourtLouisiana Court of Appeal
DecidedAugust 3, 1983
DocketCA 0602
StatusPublished
Cited by25 cases

This text of 436 So. 2d 729 (Schackai v. Tenneco Oil 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
Schackai v. Tenneco Oil Co., 436 So. 2d 729 (La. Ct. App. 1983).

Opinion

436 So.2d 729 (1983)

Harold J. SCHACKAI and Priscilla Schackai
v.
TENNECO OIL COMPANY and the Travelers Indemnity Company.

No. CA 0602.

Court of Appeal of Louisiana, Fourth Circuit.

August 3, 1983.
Writ Denied November 4, 1983.

*730 Francis G. Weller and Marc J. Yellin of Deutsch, Kerrigan & Stiles, New Orleans, for appellants.

*731 Leonard J. Cline, Metairie, for appellees.

Before GULOTTA, CIACCIO and WILLIAMS, JJ.

CIACCIO, Judge.

This is an appeal from a judgment awarding plaintiffs, Harold J. Schackai and Priscilla Schackai, $21,129.83 and $193,353.01, respectively, for injuries suffered in an automobile collision. On appeal, defendants, Tenneco Oil Company and its insurer, The Travelers Indemnity Company, attack the credibility of plaintiffs' evidence as to liability, complain that the trial court failed to rule upon the third-party action against Harold J. Schackai, argue the excessiveness of the awards and specify error in the award of pre-judgment interest on awards for future loss of income and for future pain and suffering. Plaintiffs have answered the appeal arguing that the awards are inadequate.

Mr. and Mrs. Schackai were travelling together southbound on Colonial Drive in Violet, Louisiana. Mr. Schackai was driving. As they approached the intersection of Colonial Drive and Third Street, the van in which they were travelling collided with a pickup truck operated by Wilvie Sharp, an on duty employee of Tenneco Oil Company. The Schackai van sustained damage to the right front quarter panel.

The left rear bumper of Mr. Sharp's truck was slightly damaged. Property damage has not been raised as an issue on this appeal. The Schackai's, however, alleged personal injuries for which the court granted recovery. Mr. Sharp apparently was not injured.

LIABILITY

The Schackais testified that they were travelling in the left lane on Colonial Drive at approximately 30 miles per hour when Mr. Sharp backed his truck out of his driveway and partly into the left lane of Colonial Drive. The Schackais testified that at this point the collision occurred, i.e., Mr. Sharp backed into the Schackai van. Mr. Schackai, who was driving, testified that he attempted to avoid the accident but did not have sufficient time to do so.

Officer Kastner, from the St. Bernard Parish Sheriff's Office, testified that he investigated the accident and was told by Mr. Sharp that he was backing out at the time of impact. Officer Kastner further testified that he found debris which he related to this accident to the north of Mr. Sharp's driveway, mostly in the left lane and center of the street.

The testimony of Wilvie Sharp differs from that of the plaintiffs and Officer Kastner. He testified that he had already backed out of the driveway and was actually proceeding forward in the right lane when he was rear-ended by plaintiffs' van. Mr. Sharp agrees that he told Officer Kastner that he was backing out, but claims the officer cut him off at that point and did not allow him to complete his statement that he was moving forward at the time of collision. Officer Kastner denies that he cut off Mr. Sharp.

Officer Kastner did not issue any traffic tickets in connection with this accident.

Ms. Joy Johnson also testified. She lives two houses away from Mr. Sharp. She did not witness the accident, but observed the vehicles shortly after the accident. She testified as to what location she thought the vehicles were in when she observed them. She was not sure, however, of the actual location of the vehicles.

In his reasons for judgment the trial court stated the following:

"... all indications are that the accident did take place in the left lane of Colonial Drive nearest the neutral ground and that Mr. Sharp had backed from his driveway, causing the accident.
The court is satisfied that Wilvie Sharp failed to operate his vehicle as would be required of a reasonably prudent person under the circumstances; that he failed to maintain the diligence necessary in backing out of a driveway onto a public street."

Defendants argue that the trial judge erred in his finding of liability because *732 the testimony offered by the plaintiffs was not credible and could not, therefore, support the judgment. When there is testimony in the court below, reasonable evaluations of credibility and inferences of fact should not be disturbed upon review even though the appellate court may feel its own evaluations and inferences are as reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980). The trial judge made a credibility determination based upon the testimony of all witnesses presented at trial. Our review of the testimony convinces us that the trial judge's credibility evaluations and factual inferences were reasonable and, therefore, will not be disturbed.

Based upon his factual findings, the trial judge correctly applied the law in determining liability. The statutory duty imposed upon a driver exercising a backing maneuver is set forth in La.R.S. 32:281(A), which provides:

"A. The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic."

See also: La.R.S. 32:124. An unusually high degree of care is required of those who back from private driveways into main thoroughfares. When executing such a maneuver the motorist must proceed with utmost caution and use great care and attention to be sure that it can be accomplished without interfering with other vehicles. Vinet v. Bostic, 305 So.2d 138 (La.App. 4th Cir.1974); Dupree v. Wyatt, 255 So.2d 425 (La.App. 4th Cir.1971).

THIRD PARTY DEMAND

Defendants filed a third party petition in which they pleaded that the accident had been caused solely by the negligence of Harold J. Schackai. Alternatively, defendants pleaded that Mr. Schackai's negligence "was a contributing proximate cause of the injuries to Priscilla Schackai, and [defendants] are entitled to have contribution from Schackai and his liability insurer in the amount of one-half of any amounts [defendants] may be adjudged liable to Priscilla Schackai." Mr. Schackai's sole negligence, contributory negligence and/or assumption of the risk were also pleaded in defendants' answer to the plaintiffs original petition. On appeal, defendants complain that the district court erred in not ruling on defendants' third-party petition.

While it would have been preferable for the trial court to have rendered a judgment specifically on the third-party petition, it is apparent from the judgment rendered on the original petition and the trial judge's reasons for judgment, that the third party demand was decided in favor of third party defendant, Harold J. Schackai. The trial judge found that Mr. Sharp caused the accident by his negligence. The trial judge's reasoning implies that he concluded that Mr. Schackai was not negligent. No useful purpose would be served by remanding this matter to allow the trial judge to issue a judgment on the third party petition. In the interest of judicial economy, we will, therefore, render judgment based upon the trial judge's evaluations of credibility and findings of fact, dismissing the third party petition.

QUANTUM

On the question of quantum the trial judge provided well articulated reasons for the awards he gave to plaintiffs. His reasons follow:

Mrs.

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Bluebook (online)
436 So. 2d 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schackai-v-tenneco-oil-co-lactapp-1983.