Veals v. Manis

437 So. 2d 359, 1983 La. App. LEXIS 9182
CourtLouisiana Court of Appeal
DecidedSeptember 13, 1983
DocketNos. CA-0623, CA-0624
StatusPublished
Cited by6 cases

This text of 437 So. 2d 359 (Veals v. Manis) 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
Veals v. Manis, 437 So. 2d 359, 1983 La. App. LEXIS 9182 (La. Ct. App. 1983).

Opinion

GULOTTA, Judge.

In these consolidated suits, arising out of a three vehicle-two collision case, two of the three drivers appeal from adverse judgments. Quantum is not an issue. We affirm.

The collisions occurred on the rainy afternoon of May 4,1979, in the three eastbound lanes of 1-10 between the Elysian Fields and Louisa Street exists. An automobile driven in the right lane by Derosie Smith Watson collided with a pickup truck driven in the middle lane by Betty Manis. After a sideswiping impact between the right front [361]*361fender of the truck and the left rear fender of the car, the truck spun into the left lane, where it collided head-on with an oncoming taxicab driven by Edward Johnson, Sr. Beulah Veals, a passenger in the cab, was injured.

The cab passenger filed suit against the three drivers and the insurers of the truck and the cab.1 The truck driver filed third party claims for damages and indemnification against the other drivers, the cab owner, and all insurers involved, including her own uninsured motorist carrier. In a separate action, the cab driver sued the other drivers and the truck driver’s insurer. The suits were consolidated.

After trial on the merits, the trial judge awarded damages in favor of the cab passenger and against the uninsured driver and the insurers of the truck and the cab, in solido. All reconventional and third party demands were dismissed. In a separate judgment, the trial court dismissed the cab driver’s suit.

In written reasons for judgment, the trial judge concluded that the concurrent negligence of the automobile driver and the truck driver had caused the sideswiping impact (first collision) resulting in the spinning of the truck into the path of the cab in the left lane where the cab driver’s negligence (in failing to avoid hitting the truck) was also a concurring proximate cause of the second collision. According to the trial judge, the contributory negligence of both the cab driver and the truck driver barred either’s recovery.

Appealing, the truck driver claims the trial court erred: 1) in admitting the testimony of a witness and a photograph that were not disclosed in pre-trial discovery; 2) in failing to exonerate the truck driver from fault in the truck/car collision based on the testimony and physical evidence; and 3) in dismissing the truck driver’s claim against the cab driver and cab owner in the truck/cab collision.

The cab driver, also appealing, claims the trial judge erroneously found him contribu-torily negligent. The cab passenger, the uninsured driver of the car, and the insurers of the truck and cab have not appealed.

EVIDENTIARY COMPLAINTS

At the outset, we reject the truck driver’s contention concerning the admissibility of the testimony and the photograph. The truck driver claims that witness Pamela Vance was not named by the cab passenger in response to an interrogatory requesting the identity of witnesses intended to be called at trial and, therefore, should not have been allowed to testify. Our examination of the record discloses, however, that Vance is listed as a witness both in the cab passenger’s answers to the interrogatories and in her pre-trial statement. Accordingly, there are no grounds for excluding her testimony.

Over Manis’ (truck driver’s) objections, the cab passenger introduced a photograph of damage to the automobile involved in the accident. The truck driver contends the trial judge erred in admitting this photograph because of the passenger’s negative response to an interrogatory requesting a description of “any photograph, blueprint, diagram or ... drawing or sketch of the accident scene or the surrounding area made, taken or prepared by you or on your behalf.” The trial judge admitted the photograph for the limited purpose of showing the damage to the car involved as an “aid to the Court” that was “not conclusive of anything”. Under these circumstances, error, if any, resulted in no prejudice to Manis, when the evidence is considered in its entirety.

We now turn to the arguments raised by the truck driver and the cab driver concerning the trial judge’s evaluation of the physical evidence and the conflicting testimony.

FIRST COLLISION

Manis, the truck driver, testified that she was traveling in the middle lane of 1-10 East when Watson’s automobile moved from the right lane without warning, and [362]*362struck her twice, causing it to spin around into following traffic in the far left lane.

On the other hand, Watson, the driver of the car involved, testified that she was entirely in the right eastbound lane when the front of Manis’ truck invaded her lane and hit the rear fender of her car on the driver’s side. Watson did not observe the second collision between the cab and the truck.

Watson’s version of the accident was corroborated by her co-worker, Pamela Yance, who was following in the right lane. Vance testified that the truck in the center lane acted as if it were trying to get in front of Vance and behind Watson in the right lane. By the time Vance blew her horn to warn Watson, the truck’s right fender had hit the left rear of Watson’s car, causing the truck to skid towards the left and Watson towards the right.

Confronted with this conflicting evidence in the first collision, the trial judge applied the burden of proof set forth in Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), writ denied 256 La. 266, 236 So.2d 36 (1970), which holds that, where an innocent third party is injured in an automobile accident, there is a presumption of negligence on the part of the drivers and each has the burden of exculpating himself from negligence. See also Eason v. Hartford Accident & Indemnity Co., 327 So.2d 187 (La. App. 2nd Cir.1976); Michel v. State Farm Mutual Automobile Ins. Co., 314 So.2d 535 (La.App. 1st Cir.1975).

The trial judge noted that the testimony of the truck driver and the car driver was conflicting and irreconcilable, that neither party had been impeached concerning an invasion of the other driver’s lane, and that the physical evidence did not establish “that the impact occurred in the middle lane as opposed to the right lane or vice versa.” Applying the Poche burden of proof, the trial judge thus concluded that both drivers had failed to exculpate themselves from negligence and that their concurrent negligence had caused the truck to spin around and stop in the left lane. We cannot say the trial judge erred.

We find no merit to the truck driver’s argument that she gave the most “consistent and credible” version of the truck/car collision and that the trial judge should have disregarded Watson’s testimony because of inconsistencies. Although Watson’s in-court description of the position of the vehicles conflicted with that given in her earlier deposition, she asserted that her best recollection of the accident was her testimony at trial and that she had made mistakes at the deposition because she had been upset.

The trial court is not required to accept all of the testimony of any witness as being true or false, and may believe or disbelieve any portion of that testimony. See Payne v. New Orleans Public Service, Inc., 374 So.2d 189 (La.App. 4th Cir.1979); Holmes v. Southeastern Fidelity Ins. Co., 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied 429 So.2d 133 (La.1983); Taylor v. Board of Levee Com’rs Tensas Basin L.D., 332 So.2d 495 (La.App. 3rd Cir.1976).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maeder v. Williams
652 So. 2d 1005 (Louisiana Court of Appeal, 1994)
Jure v. Raviotta
612 So. 2d 225 (Louisiana Court of Appeal, 1992)
Dominici v. Wal-Mart Stores, Inc.
606 So. 2d 555 (Louisiana Court of Appeal, 1992)
Anglin v. White
572 So. 2d 779 (Louisiana Court of Appeal, 1990)
Harris v. Best of America Inc.
466 So. 2d 1309 (Louisiana Court of Appeal, 1985)
Anthony v. New Orleans Public Service, Inc.
449 So. 2d 666 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
437 So. 2d 359, 1983 La. App. LEXIS 9182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veals-v-manis-lactapp-1983.