#### Wilfred JACK, Plaintiff-Appellant, v. John Robert JACKSON, Defendant-Appellee.

No. 2863.

Court of Appeal of Louisiana. Third Circuit.

Nov. 25, 1969.

Rehearing Denied Jan. 7, 1970.

Writ Refused Feb. 27, 1970.

Daniel J. McGee, Mamou, and Andrew Vidrine, Church Point, for plaintiff-appellant.

Tate & Tate, by Paul C. Tate, Mamou, for defendant-appellee.

Before SAVOY, CULPEPPER and MILLER, JJ.

SAVOY, Judge.

This action in tort was instituted by plaintiff against defendant for damages resulting from an automobile accident which occurred between vehicles which were owned and driven by the parties. From an adverse judgment, after trial on the merits, plaintiff appealed.

For a cause of action, plaintiff alleged that on the night of February 26, 1966, he was driving his car in a northerly direction on U. S. Highway 167 about *4y¿*miles north of the City Limits of Ville Platte, Louisiana; and that defendant was driving a Chevrolet in a southerly direction on said U. S. Highway 167 when suddenly defendant veered into plaintiff’s lane of travel, striking plaintiff’s automobile on its left side causing the accident and resulting injuries to plaintiff.

Defendant, through counsel who prepared the answer but did not defend the suit, admitted the collision but denied any negligence on his part. Alternatively he pled contributory negligence and also invoked the last clear chance doctrine.

As stated before, the trial judge agreed with defendant’s position and dismissed plaintiff’s suit.

There were only three witnesses to the accident, plaintiff, defendant and Mr. Rob-ley Soileau.

Mr. Soileau testified that on the night of February 26, 1969, he was driving his car in a southerly direction on U. S. Highway 167; that he was following the vehicle being driven by defendant; that he saw the vehicle driven by plaintiff coming toward *178him; that when plaintiff attempted to negotiate a slight curve in the highway, his car left the road and turned over in a ditch on the east side of the highway. He stated there was no collision between the vehicles driven by plaintiff and defendant. Defendant’s testimony was to the same effect. Plaintiff testified that as he was rounding the curve, the left front of defendant’s car struck his, causing him to lose control; and that when his car turned over, he became unconscious.

State Trooper Floyd Fontenot investigated the matter shortly after the plaintiff’s car was disabled. He found a slight dent on the left front of defendant’s vehicle. It appeared to be a minor scratch. He stated that defendant had been drinking and appeared to be intoxicated.

In arriving at a decision, the trial judge stated that he placed great weight on the testimony of Mr. Robley Soileau who was behind the defendant’s car and testified that he saw the accident and that no collision occurred between the two vehicles. The trial judge, prior to the end of the trial, allowed counsel for defendant to amend the eleventh and twelfth articles of defendant’s answer, which read as follows:

> “11.

> “That an accident did occur on or about February 26, 1966, involving a vehicle owned and operated by the plaintiff and a vehicle owned and operated by the defendant, at a point approximately four and one-half miles north of the city limits of Ville Platte, Louisiana.

> “12.

> “That the plaintiff, suddenly and without any warning whatsoever, placed his vehicle within the path of the vehicle operated by the defendant by moving or backing same onto the highway into the lane of traffic of defendant at such a time and point as to prevent the defendant from avoiding contact with the vehicle of plaintiff.”

Over plaintiff’s objection the trial court allowed the amendment. The objection was based on the fact that in answer defendant admitted the accident, whereas on the trial thereof he denied any collision with the car belonging to plaintiff.

LSA-C.C.P. Article 1151 provides that after answer is filed, the answer may be amended by leave of court or by written consent of the adverse party. Since the granting of the amendment is allowed under the provisions of the above-mentioned article, we cannot say the trial judge abused his discretion.

On cross-examination plaintiff also admitted he had been drinking on the night in question.

We do not think that it makes any difference in the instant case whether or not a collision did occur. Even if a collision did occur, the question to be determined is whether the collision was a cause in fact of the accident.

The evidence reveals that both cars were traveling at a fast rate, but within the speed limit of sixty miles per hour for U. S. Highway 167.

We are of the opinion that the sole cause of the accident was the negligence of plaintiff in negotiating the curve at such a high rate of speed.

The trial judge saw and heard the witnesses, and he believed Mr. Soileau’s version of the accident. We cannot say that he committed error in arriving at his decision.

This is a fact case, and we do not disturb the finding of a trial judge unless the record reveals that he committed grave error in reaching his decision.

For the reasons assigned, the judgment of the district judge is affirmed at appellant’s costs.

Affirmed.

*179MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

The record convinces me that plaintiff carried the burden of proving the two vehicles collided in plaintiff’s traffic lane, and that defendant negligently crossed into plaintiff’s lane. This caused plaintiff to lose control and drive into the east ditch. Plaintiff is therefore entitled to recover. Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957).

The majority has held that the sole proximate cause of this accident was the negligence of plaintiff in negotiating the curve at a high rate of speed, but notes that his speed was within the sixty mile per hour speed limit provided for U. S. Highway 167. Defendant’s witness Mr. Soileau placed his speed and defendant’s speed at 55 miles per hour, the same speed was given by plaintiff as his own at the time the two vehicles passed (or sideswiped). This curve was described in the record as only a bend in the road. The road had been reworked some time before and was hardsurfaced. It had good shoulders. The weather conditions were excellent. There is nothing in this record to suggest that a motorist should reduce his speed from the posted speed limit to negotiate this bend in the road.

My brethren note that plaintiff admitted on cross-examination that he had been drinking on the night in question. His testimony was that he had one beer after he got off his job as an “operator” at the Carbon Black plant at 11:30 that night. The accident occurred at about 1 a. m. and there is no evidence that he had consumed more than one beer that night.

On the other hand, it was established that defendant was under the influence of intoxicating beverages. He spent the balance of that night in jail and was bonded out later that day. He later forfeited the bond on the D.W.I. charge.

The trial court stated in written reasons (Tr. 83, 84) that “the Court was impressed with the testimony of a disinterested witness, Robley Soileau, who was following the Jackson (defendant) vehicle approximately a block away.

“This witness testified that no collision occurred between the Jackson vehicle and the Jack vehicle and that, as a matter of fact, it seemed to him at the time that the Jack vehicle was out of control before it met up with the Jackson vehicle because the Jackson vehicle pulled off the road onto the shoulder when he missed the Jack vehicle. Mr. Soileau stated that he did likewise. Mr. Soileau also stated that he saw in his rearview mirror that the Jack vehicle had turned over from the lights.

“The Court has studied the demeanor of the witnesses and concludes that the plaintiff has failed to carry the burden of proof necessary to recover. This is reinforced since no evidence whatsoever was shown that would indicate a collision did occur. Certainly if the defendant’s truck had been dented as intimated a picture could have been made of this. The defendant testified his truck was never wrecked before or after this alleged accident.”

As stated in our majority opinion, the trial judge “believed Mr. Soileau’s version of the- accident. We cannot say that he committed error in arriving at his decision.” I agree that when the trial court expresses an opinion on credibility we are bound to accept this statement of credibility. But what was Mr. Soileau’s testimony?

First let us note that Soileau admitted that he had spent the evening in Clubs and admitted that he had consumed “three” beers (Tr. 192) subsequent to his last meal (eaten before 6 p. m.) that day. Mr. Soil-eau’s passenger, Mr. Kenneth Fontenot, was not called to testify. This may have been because Fontenot was quite intoxicated at the time of the accident (Tr. 203), or perhaps because his address at the time of trial was unknown. Mr. Soileau was *180looking for a restaurant at the time he witnessed the accident.

Soileau stated that he was following defendant at a speed of 55 mph (Tr. 188) at a distance estimated at one block (Tr. 202) and that he first noticed plaintiff’s vehicle approching when it was 250 to 300 feet from *Soileau.*Tr. 197. This must be interpreted as stating that he didn’t notice plaintiff’s vehicle until plaintiff and defendant passed one another. If before, it could not have been much before. Soileau described the manner in which plaintiff was approaching as “ * * * it looked like it was pretty much in control but it was coming fast.” Tr. 183.

At Tr. 197 Soileau was testifying about what happened when he and defendant first drove back to check on plaintiff and his wrecked 1964 Corvair.

> “Q. Did you talk with him (defendant) face to face?

> “A. Yeah, I talked to him. He said he thought Jack’s (plaintiff’s) car had hit him, sideswiped it.

> “Q. That’s what he told you ?

> “A. That’s what he thought, that’s what he said he thought.”

At Tr. 180, Soileau testified:

> “Q. Did you all talk or say anything?

> *“A.*Well he asked me what happened, I told him it looked like his car had wrecked.”

At Tr. 202, Soileau testified:

> “Q. Did you see an accident? Did you see them hit?

> “A. No, I didn’t see, well in fact, from what I seen it didn’t seem like anybody hit him.”

At Tr. 204, Soileau was testifying as to what he told the investigating officer.

> “Q. Did you tell him that you hadn’t seen a collision?

> “A. No, I — yeah, I told him I didn’t see a collision, from what I seen, it didn’t look like they had hit.

> “Q. I see.

> *“A.*They could have hit but I didn’t see, you know.”

Soileau testified at Tr. 200 that he, the defendant, and the investigating officer (all three) looked at the scratches and the dent on defendant’s left front fender. At that time, there was no suggestion that these damages were not related to the accident. Soileau admitted at Tr. 198 that he couldn’t tell whether or not defendant had been drinking because of the three beers which he (Soileau) had consumed. Soileau was absolutely certain that plaintiff’s vehicle never crossed the centerline. Tr. 175, 184, 185, 197.

The investigating officer testified that he talked to Soileau and to defendant while making his investigation. He gained the impression at the investigation that the impact occurred in plaintiff’s lane of traffic. Tr. 108, 110. He found slight damage on plaintiff’s left front fender. Tr. 113. He found defendant to be under the influence of intoxicating beverages. Tr. 106.

Defendant was living in Alexandria and working in Ville Platte at the time of the accident. On the morning before the accident, he got up to go to work sometime between 4:00 and 5:00 a. m. He completed the day’s work at about 5:30 p. m. and drove back to his home. He ate a good supper and drank one beer with supper. Later in the evening he drank another beer. While getting ready to go to bed, he discovered that he had some keys that the night watchman needed, so he decided to drive back to Ville Platte to return the keys. Since he was sleepy, he took a can of beer to drink on the road “to help me stay awake.” Tr. 215, 254. He drank this can of beer within the first few miles. Tr. 49. The accident occurred at 1 a. m., some 30 to 45 miles later. He had been without sleep at this time for at *181least 20 hours, and admitted that he was “drowsy” at the time of the accident. Tr. 259.

Defendant contradicted himself so many times that the writer, at least, must conclude that his testimony is questionable. In this connection it is noted that both the trial court and my brethren rely on the testimony of Mr. Soileau. The only testimony in this record to indicate that plaintiff crossed the centerline of the highway was the testimony of defendant.

Defendant testified that he first noticed plaintiff’s vehicle when it was about 200 feet away from him. It was not weaving. Tr. 231. But when plaintiff was about 150 to 200 feet away, it looked like plaintiff went onto his right shoulder, then started drifting into the center of the road. Tr. 61 et seq; tr. 230 et seq. Defendant stated that he reacted by pulling to the right, and that he thought that plaintiff continued across the road and went into the ditch on the west (plaintiff’s left) side of the road. That defendant was confused as to his position in the road and as to plaintiff’s movement is absolutely certain, for Soileau consistently and adamantly testified that plaintiff never crossed the centerline. Furthermore it was established that plaintiff’s vehicle left the road on the east side rather than on the west.

This testimony is entirely consistent (except as to plaintiff’s crossing into the middle of the road) with the version given by plaintiff. Plaintiff saw defendant’s vehicle come into plaintiff’s lane of traffic. He slowed while taking the right shoulder (also blinked his lights and sounded his horn), but defendant continued on into plaintiff’s lane and struck a light blow on the front of plaintiff’s ’64 Corvair, causing him to lose control and continue into the ditch on his right. Tr. 143.

I find error in the trial court’s finding that Soileau’s testimony requires a holding that there was no impact between the vehicles. Soileau did not testify (as the trial court stated) that the Jack vehicle was out of control before it met the Jackson vehicle. Soileau specifically testified that the Jackson vehicle appeared to be under control. The testimony that Soileau pulled over to the right must have referred to his action after the accident, while preparing to turn around. For Soileau was adamant that plaintiff’s vehicle never crossed the center-line. Furthermore, Soileau first saw plaintiff’s vehicle when it was only 250 to 300 feet away from Soileau.

As noted earlier, there was much evidence in the record showing that Soileau and the investigating officer both found damage on defendant’s left front fender.

To the statement that “defendant testified his truck was never wrecked before or after this alleged accident.” Tr. 84, the writer notes that defendant repudiated this testimony and testified that he totally wrecked his truck three months after this accident. Tr. 54.

Since plaintiff was unconscious for several days after this accident and was hospitalized thereafter; since neither party had liability insurance; and further, since the truck was totally destroyed approximately three months after this accident, it does not appear significant to me that there were no photographs taken to show damage or lack of damage to the left front fender of defendant’s truck.

The writer finds manifest error in the trial court’s decision and respectfully dissents.

On Application for Rehearing.

En Banc. Rehearing denied.

HOOD and MILLER, JJ., are of the opinion that a rehearing should be granted.