Calvert Fire Insurance v. Graham , 1959 La. App. LEXIS 802 ( 1959 )

JANVIER, Judge.

In an automobile collision which occurred at about 9:30 o’clock on the night of October 9, 1955, at the intersection of North Rampart Street and McShane Drive, in New Orleans, both cars were damaged and this litigation results. North Rampart Street is a wide thoroughfare having in the center a neutral ground which separates the two roadways.

Albert Max Polite was operating a car belonging to his “common-law” wife, Mary C. Wright, and with him was a friend, Lawrence Fletcher. They were on their way in an uptown direction on the lakeside roadway of North Rampart Street. Charles E. Graham was operating his car in the opposite direction on the other side of North Rampart Street, and he decided to turn to his left at the intersection of McShane Drive. When he reached the intersection, he made the left turn and the collision occurred just as his car emerged into the other roadway from the protection which had been afforded it by the neutral ground.

Mary C. Wright had secured a policy of insurance from Calvert Fire Insurance Company. Under this policy she was to bear a part of the cost of any repairs made necessary by collision and the insurance company was to pay the balance. Accordingly the repairs were made at a cost which is admitted to have been $156.61. Of this Mary C. Wright paid $47.50 and the balance, $109.11 was paid by the Calvert Fire Insurance Company.

Mary C. Wright and the insurance company then brottght this suit against Graham, alleging that the accident had been caused by his negligence in driving from the protection afforded him by the neutral ground into the side of the Wright car as the latter was passing the intersection and when it could no longer be brought to a stop by Polite.

Graham denied any negligence on his part and averred that the cause of the collision was the negligence of Polite in that he was operating the Wright car at a speed of about 45 miles an hour, and in attempting to pass other cars which were to his right, lost control of his car, with the result that it was caused to “swing out” to the left into the Graham car. Graham then assumed the position of plaintiff in reconvention, and, alleging that Polite was acting within the scope of his employment by Mary C. Wright, or was operating the car on a mission for her, prayed for judgment against Mary C. Wright in the sum of $101.55, which is admitted to be the cost of the repairs to his car.

There was judgment dismissing both the main and the reconventional demands,'and Mary C. Wright and the Calvert Fire Insurance Company have appealed. Graham himself neither appealed nor answered the appeal.

The only eyewitnesses who testified were Polite and Fletcher, who were in the Wright car, and Graham, who was in his own car. A third eyewitness, Mitchell Smith, did not testify though the record shows that he was present as a witness for the plaintiffs when the case was called the first time in the First City Court. He was subpoenaed again but had moved and therefore did not appear as a witness for defendant when the case was finally tried.

Polite and Fletcher both say that Graham, after making a left turn, stopped in the neutral ground and then suddenly started his car forward and drove it into the side of the Wright car when that car could no longer be brought to a stop. Graham says that as his car was stopped in the neutral ground waiting for the clearance of traffic so that he might proceed, Polite, at high speed, attempted to pass other cars which were to his right and that Polite “came too near” and “tried to turn.” He then says that Polite “hit my car on the left side and pulled the whole left side off.” He says also that Polite “didn’t touch the right side at all.”

It is not possible that Graham’s version is the correct one. The Wright car could not have struck the left side of the Graham car.

We are convinced that Graham, after bringing his car to a stop in the neutral ground, started it again and emerged into the roadway and struck the side of the Wright car as it was passing. Accordingly Graham’s negligence was the sole cause of the accident.

The judgment appealed from is annulled, avoided and reversed, and there is now judgment against Charles E. Graham and in favor of Mary C. Wright in the sum of $47.50, with interest from judicial demand, and there is further judgment in favor of Calvert Fire Insurance Company and against Charles E. Graham in the sum of $109.11, with interest from judicial demand. Graham to pay all costs.

Reversed.