
    Willie BROWN et al., Plaintiffs-Appellants, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 1460.
    Court of Appeal of Louisiana. Third Circuit.
    July 30, 1965.
    Rehearing Denied Aug. 24, 1965.
    Johnson & LeBlanc, by Robert E. Johnson, New Iberia, for plaintiff-appellant.
    Helm, Simon, Caffery & Duhe, by Patrick T. Caffery, New Iberia, for defendant-ap-pellee.
    Before TATE, FRUGÉ and CULPEP-PER, JJ.
   FRUGÉ, Judge.

This litigation arises out of a collision between a 1957 Chevrolet automobile and a 1953 pickup truck on Louisiana Highway 674 near New Iberia, Louisiana. Suit No. 1460 was instituted by the driver of the pickup truck, Willie Brown, and his guest passengers, against the driver of the automobile, Wilfred Raggette, and his insurer, Southern Farm Bureau Casualty Insurance Company. Suit No. 1461, 177 So.2d 603 is brought by lisia Ellis Raggette, wife of the defendant in No. 1460, against her husband’s insurer, Southern Farm Bureau Casualty Insurance Company, and Willie Brown, driver of the pickup truck. Mr. Raggette joins in his wife’s petition. The suits were consolidated for trial. Separate judgments shall be rendered by this court.

After a lengthy trial on the merits, in which much conflicting testimony was heard, the trial judge dismissed the suits of all the plaintiffs for reason of failure of proof. All plaintiffs in both suits have appealed.

The accident occurred at night on December 25, 1960, at approximately 7:30 P.M. The pickup truck was being driven by Willie Brown in an easterly direction and the Chevrolet automobile was being driven westwardly by Wilfred Raggette. There were patches of rather heavy fog in the area where the accident occurred. The vehicles collided head-on, causing severe personal injuries. There was heavy damage to the left front of both vehicles. It is apparent that one of the vehicles invaded the proper lane of travel of the other, or that both vehicles partially crossed the center dividing line of the highway. There was no physical evidence by which the point of collision could be fixed as to its location on the highway. The automobile came to rest on the shoulder and partially in the ditch on the north side of the highway, and the pickup truck came to rest in the south lane, facing west, having been turned completely around from the direction in which it was proceeding.

Seated in the cab of the pickup truck were plaintiffs Willie Brown, Mrs. Brown, Justina Johnson Alexander, and Joseph Ben, with his small minor daughter in his lap.

Willie Brown testified that he was driving in his proper lane of travel at about 35 miles per hour, with his lights on. He stated that after meeting one westbound car which passed him, the automobile which defendant Raggette was driving also in a westerly direction, pulled into the south lane of travel as though to pass the preceding automobile. It was then that the collision occurred.

He testified that although he had some-trouble with his headlights about two-weeks prior to the accident, the trouble-had been corrected and he had checked the-lights the day of the accident to see that they were operating properly.

Mrs. Brown generally corroborated her husband’s testimony. Joseph Ben was admittedly intoxicated and knew nothing of how the accident happened. Justina Johnson Alexander was also unable to remember anything about the accident.

Three passengers in an automobile that was following behind the pickup truck of Willie Brown testified positively that Willie Brown was in his proper lane of travel when the accident occurred. They also stated that he had his lights on. They were, however, vague as to the distance between their car and Willie Brown’s truck and as to how the accident occurred. It was established at the trial that these witnesses were friends or relatives of the occupants of the pickup truck. The trial judge was apparently unimpressed by their testimony.

Wilfred Raggette was not called as a witness by his insurer. He testified on cross examination that he was driving straddling the white line in the center of the highway and that he could see only twenty or thirty feet ahead of him. He stated that on seeing the truck he tried to turn back into his lane of travel but did not know whether he succeeded in doing so before the collision. At the time of the accident he told the investigating police officer that he was in his proper lane of travel at all times prior to the collision. He had likewise given such a statement to a representative of defendant, Southern Farm Bureau Casualty Insurance Company.

At the time of the accident he was not married to his present wife, plaintiff lisia Ellis Raggette, who was a guest passenger in his automobile. In assessing Wilfred Raggette’s testimony, the trial judge stated, “He changed his original story of how the accident happened probably because he realized that unless the court found that the proximate cause of the accident was his negligence, his wife, lisia Ellis, would he unable to collect for the injuries she received as a result of the accident.”

The third passenger in the front seat ■of the automobile, Séptima Boutte, was not called to testify, it being stipulated that if she were so called she would testify that Wilfred Raggette was in his proper lane of travel when the collision occurred.

Melba Verdun, a passenger in the left rear seat of the Raggette automobile, also testified that Raggette was in his proper lane of travel. Because of her seating position in the car and the fact that she was engaged in conversation with the other passenger in the rear seat, it is doubtful that she observed the position of the automobile in the road just prior to impact.

The other person in the rear seat of the automobile was Alfred Raggette, the brother of the driver, Wilfred Raggette. He stated that he was able to see, from his position in the rear seat, the white line dividing the highway and that the automobile was being driven on its side of the road.

According to their testimony, none of the passengers in the Raggette automobile other than the plaintiff lisia Raggette saw any lights from the approaching pickup truck just prior to the accident. On discovery deposition, lisia Raggette had stated that she saw nothing of the approaching pickup truck, but changed her testimony at the trial on the merits.

Cleveland Raggette, a brother of Wilfred Raggette, who was not involved in the accident, testified that two days after the accident he was present when his father talked with Willie Brown. He stated that at that time Willie Brown said that he was •driving without lights on his truck and was looking for a road on which to turn when the accident occurred. This was all denied by Willie Brown in his testimony at the trial.

The foregoing presents a summary of the conflicting testimony which confronted the trial judge. In dismissing the suits of all plaintiffs for their failure to prove their claims, the trial judge stated, “A-careful reading of the evidence adduced at the trial of these suits should convince anyone that it is simply impossible to determine with any degree of certainty whether the accident in question was caused by the negligence, if any, of one or both the drivers of the vehicles involved in the accident.”

On behalf of all of the plaintiffs that were guest passengers in the pickup truck and the automobile, it is now argued that the trial judge erred in dismissing their suit for the reason that clearly at least one of the drivers was at fault. It is urged that in such a case the burden of proof is upoil both of the drivers to exculpate themselves from any negligence proximately causing the accident.

Indeed, there have been several cases in our jurisprudence stating the rule that where an innocent party is damaged as the result of an accident between two vehicles, then each driver bears the burden of exculpating himself from negligence which proximately causes the accident. These cases stem from the decision in Insurance Company of North America v. Gore, Orl.App., 106 So.2d 471.

We note, however, that none of these cases stating this rule involves injúry to a guest passenger in one of the vehicles involved in the collision. Rather, each case applying the rule is concerned with damage to a person or person’s property that was remote from or entirely unassociated with the colliding vehicles or their drivers. Thus it is seen in the Gore case, supra, that recovery was being sought for damages to a building struck by one of the cars involved in the accident. In Equitable Fire & Marine Insurance Co. v. Allstate Insurance Co., La.App., 4th Cir., 137 So.2d 366, a laundry building was struck by one of two cars involved in an accident. Emmco Insurance Co. v. Liberty Mutual Insurance Co., La.App. 4th Cir., 138 So.2d 822, was concerned with damage to a parked automobile. Jones v. Southern General Insurance Co., La.App. 3rd Cir., 157 So.2d 335, dealt with the burden of proof where a pedestrian was struck by one of two cars which collided. Westchester Fire Insurance Co. v. Dardar, La.App. 4th. Cir., 158 So.2d 239, is concerned with damage to a grocery store by an intruding truck involved in a collision with another vehicle.

We further note that adherence to this rule of shifting the burden of proof was strenuously urged in two prior appellate cases involving injury to guest passengers, and in both cases the Court of Appeal rejected the argument. Nelson v. Zurich Insurance Co., La.App. 2nd Cir., 165 So.2d 489, and Derouen v. American Employers Insurance Co., La.App. 1st Cir., 118 So.2d 522. Both cases, however, were reversed by the Supreme Court on the facts of each case. In reversing the trial and appellate courts’ holdings in the Derouen case, 240 La. 486, at 499, 123 So.2d 896, at 901, the Supreme Court stated:

“Plaintiffs bore their burden of proof, in view of the fact that when they presented their case they called Mrs. Galdwin Derouen and Mrs. Whitney Maturin as witnesses under LSA-R.S. 13:3662. They alleged that both ladies were negligent and sustained the burden of proving this fact by the testimony of these ladies themselves.” (emphasis added)

Clearly, there are instances where a defendant, from the inferences drawn from the facts, will be presumed to be negligent and bears the burden of exculpating himself, 'such as in the case where the driver of an automobile is involved in an accident in the wrong lane of travel. See Laughlin v. Allstate Insurance Co., La.App. 3rd Cir., 169 So.2d 396, and cases cited therein. However, the facts in the instant case do not give rise to such an inference.

We are not unmindful of the duty of the court to decide how an accident occurred and the liabilities of the parties, if any, where there are facts in the case sufficient to make a decision possible. In this case, however, we must agree with the trial court’s decision that all of the plaintiffs have failed to establish their claims by a preponderance of the evidence. For the foregoing reasons, the judgment of the lower court is affirmed. Costs of this appeal shall be borne by plaintiffs-appellants.

Affirmed.

CULPEPPER, J., concurs with written reasons.

TATE, J., dissents and assigns written reasons.

CULPEPPER, Judge

(concurring).

The majority opinion cites but does not expressly approve or disapprove the Gore case and its progeny. Instead, the majority has chosen to distinguish those cases on the grounds that they involved damages to buildings, parked automobiles and pedestrians, whereas the present case involves personal injuries to passengers in the two colliding vehicles. It appears the rationale of this distinction is that a pedestrian, or the owner of a parked car or building, is not in a position to know how the accident occurred, whereas passengers in the vehicles are in as good a position as the drivers to know the cause of the accident.

I find it unnecessary to make any such distinction because I do not accept the Gore case and its progeny as the settled jurisprudence of this state. Our Supreme Court has not approved the Gore doctrine and, as noted in the majority opinion, our Courts of Appeal are in conflict on this concept. For the reasons which have been fully elucidated in Nelson v. Zurich Ins. Co., La.App., 165 So.2d 489 (2d Cir. 1964; reversed on other grounds at 247 La. 438, 172 So.2d 70) I think the doctrine of the Gore case is in effect an entirely unwarranted extension of res ipsa loquitur, for which there is no sound authority in this or any other jurisdiction.

I agree with the majority opinion that the plaintiffs here have failed to prove negligence on the part of either of the two drivers. There is no physical evidence which is of assistance and the testimony is in such hopeless conflict that we are unable to determine how the accident occurred. I therefore concur in the decree.

TATE, Judge

(dissenting).

The writer must respectfully dissent.

With great respect for the trial court and the majority, our dismissal of the claims of all the passengers is not a permissible judicial resolution of the issues before us. The accident happened through the fault of at least one of the drivers; both drivers are impleaded; all possible witnesses are called to testify. Nevertheless, we say, we cannot determine which witnesses are testifying truthfully; so we dismiss both suits.

It is as if, faced with a difficult question of law, we refuse to adjudicate the rights of the parties because we cannot make up our minds as to which of the conflicting interpretations of law is correct. I think all of us would agree that the refusal for such reason to decide a question of law would be a shirking of judicial duty. I respectfully suggest that we no less do so if we refuse to decide a question of fact (on which side of the road did the accident occur?) solely because the evidence is conflicting and confused.

As the majority notes, for reasons similar to the present majority’s the Louisiana courts of appeal have in only two instances dismissed suits by a passenger against both drivers. Nelson v. Zurich Insurance Co., La.App., 165 So.2d 489 and DeRouen v. American Employers Insurance Co., La. App., 118 So.2d 522. In both of these instances the Supreme Court granted writs and reversed, awarding judgment against one or both of the drivers on the basis of factual findings made by the Supreme Court which the intermediate courts had found themselves unable to make on the same evidence. Nelson v. Zurich Insurance Co., 247 La. 438, 172 So.2d 70; DeRouen v. American Employers Insurance Co., 240 La. 486, 123 So.2d 896.

In the opinion of the writer, the Supreme Court has thus plainly disapproved a Louisiana court refusing to decide a case because it cannot make up its mind as to which of conflicting witnesses is testifying truthfully, when a faultless plaintiff must recover under either version.

In the present case, for instance, the Brown pickup truck was proceeding east one foggy evening, while the Raggette Chevrolet was driving west. The road was straight and marked by a white center-line. The left fronts of both vehicles collided. It is indisputable that one or both of the vehicles were over the center-line.

The question of fact for decision is simply this: Did the collision occur (a) on the north (Raggette’s) side of the center line, or (b) on the south (Brown’s) side, or (c) with both vehicles astraddle the line?

The present suit is by Brown and his passengers against Raggette and his insurers. A companion suit consolidated with this (Ellis v. Southern Farm, etc., 177 So.2d 603, Docket No. 1461 decided this date) is by Raggette’s passenger against (a) Brown and (b) Raggette’s insurer.

The testimony is as follows:

(A) Brown, his wife, Raggette, and Rag-gette’s plaintiff-passenger all testify that the accident happened with Brown in the correct lane and Raggette in his wrong lane. This testimony is corroborated by three passengers in a vehicle following Brown’s. Two other passengers in Brown’s car did not know where the accident occurred.

Versus

(B) Three passengers in the Raggette vehicle testified that Raggette was in his proper lane and thus that Brown was in the wrong lane at the time of the accident. Prior contradictory statements were proven by Brown, Raggette, and Raggette’s plaintiff-passenger to the effect that Brown was driving without lights (somewhat verified by the investigating state trooper) and that Raggette was indeed in his proper lane at the time of the accident (despite contrary testimony of these witnesses at the trial).

Obviously, if testimony A is correct, then Brown and his passengers and the Rag-gette plaintiff-passenger are entitled to judgment against Raggette or his insurers. If, to the contrary, testimony B is correct, then the Raggette plaintiff-passenger is entitled to judgment against Brown. One set of testimony or the other is correct (unless both vehicles were over the center line, in which event all passengers recover against both drivers or their insurers insofar as impleaded).

Under the evidence, it is impossible that the accident did not occur without actionable fault on the part of at least one of the defendant drivers. Both sets of witnesses cannot be right that their driver was on his own side of the road, for the accident could not then have occurred. It is our duty to decide which version of the accident is correct.

As the Supreme Court stated in the Nelson case, after noting (172 So.2d 71) the court of appeal’s failure to decide because of the irreconciliable conflict in the testimony of the witnesses: “ * * * the-opposed versions are irreconciliable, hence we must resort to the application of the-well recognized rule that: ‘Where witnesses differ, the courts should reconcile, if possible, the apparent contradictions that the testimony presents. If this cannot be done, then the probabilities or improbabilities of their respective statements must be considered in the light of their capacity, opportunity or incentive for observation,, the amount of corroboration, if any, and the degree of proof required.’ ” 172 So.2d 72.

Applying this rule, under the present evidence, then a court could either find version A to be correct, based upon the great preponderance of witnesses to this general effect, or else find version B to be correct, by discounting version A witnesses (because, e. g., of inconsistencies, interest, prior contradictory statements, lack of opportunity to observe) and by accepting version B witnesses as proving, by a slight preponderance, that Raggette was in his proper lane at the time of the accident, A court could possibly also, taking into account the physical evidence, the foggy evening, the conflict of the witnesses, find both drivers at fault in their speeds and observation while driving during the fog.

That deciding this may be very, very difficult; that a very slight preponderance of the evidence, after discounting for credibility, may incline the factual resolution to one conclusion or another; still does not, in my opinion, justify a majority opinion to shirk the decision of the issue thus squarely posed by the conflicting evidence.

For the reasons assigned, therefore, I respectfully dissent.

On Application for Rehearing;

En Banc. Rehearing denied.

TATE and SAVOY, JJ., are of the opinion that a rehearing should be granted. 
      
      . Cf. Art. 4, Code Napoleon (Claitor’s 1960 reprint of an 1804 translation): “The judge who shall refuse to determine under pretext of the silence, obscurity, or insufficiency of the law, shall be liable to be proceeded against as guilty of a refusal of justice.”
     