
    Samuel Doug LUCIUS, Individually and on Behalf of the minor, Sherry Ann Lucius, Plaintiff-Appellee, v. STONEWALL INSURANCE COMPANY and William Cross, Defendants-Appellants.
    No. 2466.
    Court of Appeal of Louisiana. Third Circuit.
    Oct. 31, 1968.
    Rehearing Denied Dec. 5, 1968.
    
      Gold, Hall & Skye, by James D. Davis, Alexandria, for defendants-appellants.
    John P. Godfrey, Many, for plaintiff-appellee.
    Before TATE, FRUGÉ and SAVOY, JJ-
   SAVOY, Judge.

This is an action for damages instituted by Samuel Doug Lucius for personal injuries sustained by his daughter, Sherry Ann Lucius, and for medical expenses sustained by him.

On the afternoon of May 2, 1967, in the Town of Hornbeck, Louisiana, Sherry Ann Lucius received minor abrasions to her face which became infected and later required medical care. The child received abrasions either by falling face-down in some gravel, or because she was struck by an automobile being driven by Grace Cross, wife of William Cross, who was insured by the Stonewall Insurance Company.

The accident occurred on a gravel driveway or turn-around in front of the Cross home. On the date of the accident the Cross vehicle was parked in front of the residence. Mrs. Cross came out of the house, got into the automobile and proceeded to make a U-turn using the circular driveway. Sherry Ann Lucius, who along with her brothers and sisters, was being taken care of by the Crosses, ran after the automobile and either fell, face-down in the gravel, or was struck by the automobile. At the time of the accident, Sherry Ann Lucius was a • child of only eighteen months.

The trial court awarded $2,500.00 to Samuel Doug Lucius for the use and benefit of the minor, Sherry Ann Lucius, and awarded $363.50 to Samuel Doug Lucius individually. Stonewall Insurance Company and William Cross effected a sus-pensive appeal. The appeal was answered by the plaintiffs who pray that the award be raised to $5,000.00.

Counsel for both defendant and plaintiff agree that there are only three major issues for this court to decide. These issues are first, whether the child fell or was struck; second, whether Mrs. Cross was negligent if the child was struck; and third, the issue of quantum.

I

Did Sherry Lucius fall or was she struck by the automobile? This question cannot be answered without going into the testimony given at the trial.

The record of the trial indicates that at the time of the accident there were some five witnesses to the accident. Of these the defendant produced William Cross, the husband-defendant, Eulla Mae Bonner and Ronald Prewitt. Grace Cross gave a statement to a representative of the defendant and then was never heard of again. Plaintiff’s only eye witness was Laura Lucius, the ten year old daughter of plaintiff.

This court is somewhat amazed at the problems that counsel encountered in acquiring evidence and testimony on which to base their respective positions. To simplify matters, it was alleged by both counsel that there were misrepresentations of the facts by each other’s witnesses. Some of defendant’s witnesses testified that plaintiff tried to bribe them. Plaintiffs testified that defendant’s witnesses were not telling the truth because they had been threatened by the defendant, William Cross.

By his decision, the lower court evidently did not believe any of the defendant’s witnesses. He found without question that the vehicle driven by Mrs. Cross had struck the child. He stated that he based his ruling on the testimony of Laura Lucius, the ten year old sister of the plaintiff’s daughter, and on the findings of the medical expert. This expert testified that, due to the particular injuries the child received, he believed she had been struck.

This court is not at liberty to find that the lower court’s reasoning, as to who or why some of the witnesses were not telling the truth, was wrong, unless there was manifest error. Applicable here is the well established rule that findings of fact by the trial court, particularly those involving the credibility of witnesses are entitled to great weight on appeal, and that determinations made by the trial judge as to the facts will not be disturbed unless found to be clearly erroneous. Evers v. State Farm Mutual Automobile Insurance Co., 187 So.2d 217, 222 (La.App.3d Cir., 1966), and Huntsberry v. Millers Mutual Fire Insurance Co., 205 So.2d 617 (La. App.3d Cir., 1967).

As to the question of whether the child fell or was struck, we will consider ourselves bound by what the lower court found. The trial judge was able to observe the demeanor of the witnesses and therefore was a much better judge of their character, truthfulness, and general credibility. However, we shall limit our adoption of the trial court’s decision only up to the point that we rule that the automobile did strike Sherry Ann Lucius.

II

If the child was struck by the Cross vehicle, was the driver, Grace Cross, negligent?

Accepting the fact that the automobile did strike the child, we still do not know the facts surrounding the accident. With the exception of the testimony of plaintiff’s only eye witness, Laura Lucius, and the medical testimony of Dr. Fraser, the facts of how the automobile came to strike the child were not brought out.

Laura Lucius testified that just prior to the time that Mrs. Cross was getting ready to leave, she had moved to a position near the porch on the house, and that therefore she was able to witness what happened. Defendant’s witnesses, particularly Mr. Cross, testified that at the time of the accident, Laura Lucius was south of the area, near the main gravel road, throwing rocks at a railroad track. The trial court decided in favor of Laura Lucius’s testimony, and in essence, ruled that she was in a position to see and did see what happened.

Laura Lucius testified that Mrs. Cross had directed her husband to gather the children near the house because she was preparing to leave. She also testified that her sister, Sherry Ann, desired to accompany Mrs. Cross in that when Mrs. Cross got into the vehicle and started to move, Sherry Ann Lucius left the porch and ran after the automobile. She either caught up with the automobile or got in front of it, so that the right front fender and tire of the automobile struck her. The automobile then passed the point of impact, stopping some five to six feet beyond where the accident occurred.

Again, it would seem that we are discussing the question of whether or not the accident actually happened, but beyond this the facts are few. When we get into the question of negligence, we find that the record is bare. In fact, the opinion of the trial court does not mention the word negligence, nor does he give a basis for his reasoning that the ultimate judgment should be in favor of plaintiff. There is only one instance in the record, that this court could find, where negligence could be insinuated. In the questioning of Laura Lucius, she was asked:

“Q. Do you know what part of the car struck the child — what struck your little sister?
“A. The front end.
“Q. Now had your little sister run in front of the car, is that what happened?
“A. Yes sir.
“Q. She ran in front of it?
“A. Yes sir.
“Q. What did you say?
“A. Yes sir.
“Q. Where had your little sister run from in order to get to the car?
“A. She ran in to the front end of the car.
“Q. I know, but she had run from what ? the porch ?
“A. Yes sir.
“Q. She had run from the porch?
“A. Yes sir.
“Q. And ran in front of the car?
“A. Yes sir.
“Q. Is there anything there which would have kept Grade from seeing this child if she had looked?
“A. I don’t know." (Emphasis ours.)

We submit that this falls far short of proof of negligence.

It is inconceivable that an eighteen month old child could really have run fast enough to cover the fifteen feet distance from the porch and the seventeen foot length of the automobile so as to arrive at a position where she could be struck by it in the manner testified to by Laura Lucius. She would have had to outrun the automobile and to get in front of it on the right side when in fact the automobile was in the process of turning left.

Even if we suppose that the accident happened in this manner, it is impossible to see the negligence on the part of Grace Cross. Many more elements than the simple fact that an accident occurred are necessary to prove a cause in negligence. The record is bare as to essentials like did she see the child, could she or should she have seen the child, and was the accident avoidable.

The testimony of all the witnesses is that Sherry Ann Lucius was near the porch, and that Mrs. Cross had given instructions that the children be kept there. Under these circumstances, she had no obligation to keep a lookout for the child, or if she had such an obligation there is no evidence upon which to base a finding that she did not bear the duty to maintain a proper and careful lookout for the child. It is to be noted that her line of travel was forward, away from the place where the children were when she began, so as to distinguish this case from those involving accidents occurring when a driver is in the process of backing an automobile.

It is the duty of plaintiff to bear the burden of proving, by a preponderance of the evidence, his cause. Plaintiff alleged negligence and the lower court ruled in his favor. This court finds itself unable to sustain such a finding, and we find that the lower court was manifestly erroneous in its interpretation of the facts if it found that there was negligence in this case.

Ill

Having resolved the issues in favor of the defendant-appellants, there is obviously no need for us to discuss the issue of quantum.

To resolve this matter, it would probably be better to remand the case and reopen the record for introduction of evidence as to negligence. However, in view of the problems that counsel have had with the witnesses, this court finds that such an action would be futile. Under the power granted this court by the Constitution, we shall make a new finding of fact. We agree with the lower court in saying that the child was struck, but disagree with its ruling in that the evidence in the record does not sustain a finding of negligence. Costs to be paid by plaintiff-appel-lee.

Reversed.

TATE, J., concurs.

FRUGÉ, J., dissents for the reason that trial judge correctly disposed of all issues.

TATE, Judge

(concurring).

The writer concurs with the majority holding that the negligence of Mrs. Lucius is not sufficiently proved. According to the allegations of the petition, the defendants are sought to be held liable only on account of Mrs. Lucius’ alleged negligence.

In thus agreeing to reversal, the writer must point out the extremely strong reasons which caused the trial court to hold the defendants liable.

The injured child, 18 months of age, was left in the care of Mr. and Mrs. William Cross. I think the evidence proves the child was hit by the Cross automobile driven by Mrs. Cross. Although all five mature witnesses denied seeing this accident, it is to be remembered that the little child and three other small Lucius children (aged 10, 4, 3) were left at the Cross home with the Crosses and their friends. No mature witness of the Lucius family were able to verify what happened to the child during the absence of the parents during the period the Crosses had the care of the child. Because of conflicting statements, inconsistencies, and for other cogent reasons, the trial court specifically found the defendants’ witnesses unworthy of belief.

The trial court accepted as true the ten-year old sister’s testimony that the car driven by Mrs. Cross struck the child. I agree with our trial brethren that this testimony is strongly corroborated by the testimony of the examining physician, who saw the child the next day, and who felt that a simple fall could not have caused the extensive abrasions and injuries which initially made the doctor suspect a possible skull fracture (eye swollen, both sides of the face lacerated, heavy bruises, etc.) Further, under the trial court’s evaluation of the credibility of the witnesses (which accepted the Lucius’s testimony and discounted all of the defendant’s witnesses to opposite effect), Mrs. Cross, the driver of the car, admitted to the parents the next morning that she had hit the child with her car. See Tr. 58-59, 74 — 75. Admissions made by a party, when offered as evidence by an opposing part, are included within the exceptions to the hearsay rule; including an admission by an agent (such as a wife) when offered against a principal (such as the defendant husband, as master of the community). Cf., Pacholik v. Gray, La.App. 3 Cir., 187 So.2d 480.

So we find that a healthy child left in the care of Mr. and Mrs. William Cross is returned the next day badly damaged, requiring hospitalization, with the true cause of the injury not disclosed. It seems to me that the custodians of the children should bear the burden of proving that the injury to the child in their care did not result from their fault, just as a depository must exculpate himself from fault when he returns damaged goods which were initially placed in his care in good condition.

In this regard, like the trial court, the writer is unfavorably influenced by the failure of the defendants to produce the testimony of Mrs. Cross, the driver of the car, either by deposition or in person at the trial. After all, she is the insured driver whose fault is alleged to be the cause of the injuries to the little girl.

However, despite all of these circumstances, I do agree with our court’s majority that adverse presumptions such as these do not by themselves outweigh positive testimony which indicates the wife’s freedom from negligence. Conceding that the trial court found that almost all the mature witnesses to the accident committed perjury, I think the little ten-year old sister’s testimony, corroborated in some respects by the other witnesses, exculpates the wife from negligence as driver. For the effect of all this testimony is that the wife had requested her husband to take care of the little girl while she left in her automobile to go to her mother’s house next door. The little girl wanted to go with the wife. When the wife left, the little girl was left with the husband on the porch.

According to all the witnesses, the little 18-month old child commenced to run after the wife driving the car. There is some intimation that the little child ran directly to the road and met the car as it completed a turnaround, although I do not think this version is adequately proved. All witnesses indicate that the child was left in the husband’s care, with a special injunction by the wife to the husband to keep the child from trying to go after her. Despite this, the husband admittedly made no effort to stop the child from running toward the car — and as stated, the evidence conclusively shows (under the trial court’s evaluation) the child was hit by the automobile.

Thus, the evidence shows the wife to be free from fault, but also, without contradiction, it proves the husband’s fault in failing to make any effort to stop the child, entrusted to his care, from being injured by the moving automobile.

The husband is made codefendant. Presumably, therefore, judgment should be entered against him, even though the only cause of action alleged is based upon the wife’s negligence, not his. Under LSA-C.C.P. Art. 862, “ * * * a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in its pleadings, * * * See also LSA-C.C.P. Art. 2164, which likewise rejects the “theory of the case” doctrine and entitled an appellate court to render that judgment which is just and legal on the record.

Nevertheless, this disposition is not urged by brief or oral argument. If it were adopted, it brings up interesting questions of law (see Footnote 2) which should not be decided without more adequate notice and briefing. The writer has decided to concur in the present majority disposition of the sole issue yet urged (the wife’s negligence), rather than cause the delay by a reargument on an issue which neither party may wish to discuss. Also, since under the en banc conference practice of this court, a majority at this time favors reversal for the reasons stated in the court’s opinion above, the writer concurs in the court’s present majority view, with full reservation of a re-study by him upon application for rehearing.

For these reasons the writer at present concurs in the reversal.

ORDER

En Banc. It is ordered that a Rehearing be, and the same is hereby denied.

TATE, Judge:

I am of the opinion that a rehearing should be granted as to both defendants. Aside from the authorities cited in my concurring opinion, see (on bodily injury arising out of “use” of the insured automobile): Cagle v. Playland Amusement, Inc., La.App. 4 Cir., 202 So.2d 396, Baudin v. Traders &' General Ins. Co., La.App.3d Cir., 201 So.2d 379, Fidelity & Casualty Co. of New York v. Lott, 273 F.2d 500 (5 Cir. 1966).

FRUGÉ, J., is of the opinion that a rehearing should be granted. 
      
      . The wife’s inadmissible exparte statement also suggests this to be the explanation of how the child, taking the short cut straight to the road, was able to be struck by the car, as it turned back down the road from a turnaround in front of the house.
     
      
      . Probably his liability insurer is also liable for the damages for which he is held liable, since they were caused by the insured vehicle. Under the insuring clause, the policy’s coverage is not restricted to liability “arising out of the use” of the automobile. It includes liability for damages “arising out of the ownership, maintenance, or use” of the insured automobile. See 7 Appleman, Insurance Law and Practice, Section 4317 (1962 revision). It is unnecessary to come to a final conclusion as to this now, for the reasons stated in the text of the concurring opinion.
     