Mercier v. Fidelity & Cas. Co. of New York

• Decision Date: 04 November 1942
• Docket Number: 17570.
• Citation: 10 So.2d 262
• Court: Court of Appeal of Louisiana — District of US
• Parties: MERCIER v. FIDELITY & CASUALTY CO. OF NEW YORK.

10 So.2d 262

MERCIER v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 17570.

Court of Appeal of Louisiana, Orleans.

November 4, 1942

M C. Scharff and Robert A. Ainsworth, Jr., both of New Orleans for appellant.

Christovich & Kearney, of New Orleans, for appellee.

SIMON, Judge.

Plaintiff has instituted suit against the Fidelity & Casualty Company of New York to recover the sum of $3,560, damages for personal injuries allegedly sustained by him while a guest passenger in the automobile of John Furey, the defendant company being the liability insurer of the said Furey.

Defendant denied that the driver of the automobile, Furey, was in any way at fault. The accident is admitted, but the defense is urged that plaintiff and Furey were engaged in a joint adventure and joint expedition for their mutual pleasure on the evening and night of the accident, and that, under the then prevailing circumstances, any acts of negligence on Furey's part were imputable to plaintiff. Defendant further pleaded that on the evening and night of the accident plaintiff and Furey indulged freely in drinking intoxicating liquors, until both, and each to the knowledge of the other came under the influence thereof; that plaintiff was therefore independently and contributorily negligent when he knew, or should have known, that Furey was not in a physical or mental condition to prudently and safely operate an automobile; that this assumption of risk of injury as might result bars his recovery.

In the district court there was judgment in favor of defendant dismissing plaintiff's suit, and plaintiff has appealed.

The record contains a stipulation of fact agreed upon by both parties. This stipulation, together with the other evidence submitted discloses the following:

On the early evening of the accident, Furey drove to the home of plaintiff, where the latter joined him, and from there both departed in Furey's car to attend christening ceremonies at the home of a mutual friend. At this function they consumed a considerable amount of intoxicating liquors, and, deciding to continue their joint revelry, visited several saloons and bars, finally arriving at Lenfant's, a popular "drive-in" bar and restaurant in this city on Canal Boulevard, where they both continued imbibing. Becoming boisterous, disorderly, and a source of annoyance to the other patrons, their conduct provoked repeated complaints on the part of the proprietor, with the request that they "calm down". The testimony is somewhat conflicting as to the degree of drunkenness plaintiff and Furey attained during the time they were there.

Plaintiff testified that he did not remember leaving Lenfant's, or ever entering or being placed in Furey's automobile; that he has no recollection of the accident or how it occurred, having only regained his senses while receiving medical attention at the hospital to which he was taken. In the vernacular of revelers, he "passed out". He testified that the last thing he remembers is the rebuke of the proprietor and shortly thereafter falling off of a bar-stool on which he was seated.

Furey testified that shortly before leaving Lenfant's, on their last visit to said place, he and plaintiff stepped outside and an altercation occurred between them in which plaintiff took several "swings" at him. Refusing to retaliate, Furey again stepped inside the establishment, leaving plaintiff outside. Several minutes thereafter, Furey walked out, and, seeing plaintiff seated on the front seat of the car, entered and drove off. While so driving, presumably to return to their respective homes, Furey's automobile collided with the rear of another automobile parked against the curbing, resulting in plaintiff's injuries.

As to the negligence and fault of Furey in the matter of the accident and injury to the plaintiff, there can be no doubt.

Plaintiff insists that there was no evidence whatever presented which might establish negligence on his part which contributed to the accident. While he contends that he does not remember how he entered, or when he was placed in, the automobile, we have only his testimony to that effect. How he entered, whether by means of his own efforts, or through the aid of someone else is not shown. While it appears that plaintiff knew the employees of the establishment, who might have assisted him to the car, or carried him there, none of them were called as witnesses, and, consequently, there is no evidence whatever to establish that he was assisted in that respect. On the other hand, it is shown that plaintiff and Furey engaged in an altercation while on the outside, during which plaintiff made several "swi...