Bolin v. Hartford Acc. & Indem. Co.

• Decision Date: 30 October 1967
• Docket Number: No. 10878,10878
• Citation: 204 So.2d 49
• Court: Court of Appeal of Louisiana — District of US
• Parties: Robert A. BOLIN, individually and on behalf of his minor son, Robert A. Bolin, Jr., Plaintiff-Appellee, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellant.

Page 49

204 So.2d 49

Robert A. BOLIN, individually and on behalf of his minor son, Robert A. Bolin, Jr., Plaintiff-Appellee, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellant.

No. 10878.

Court of Appeal of Louisiana, Second Circuit.

Oct. 30, 1967.

Rehearing Denied Nov. 28, 1967.

Carl F. Walker, Monroe, for appellant.

Theus, Grisham, Davis, Leigh & Brown, Monroe, Philip J. Foto, New Orleans, for appellees.

Before GLADNEY, AYRES and BOLIN, JJ.

GLADNEY, Judge.

A third party plaintiff lodged this appeal from a judgment sustaining an exception of no cause or right of action of the third party defendants. A motion to dismiss has been filed. The relevant facts governing the appeal disclose:

Robert A. Bolin, plaintiff herein, instituted this action against defendant Hartford Accident & Indemnity Company to recover damages arising out of a motor vehicular accident that occurred July 13, 1965 on Louisville Avenue in the City of Monroe, Louisiana, involving an automobile owned and being operated by plaintiff and otherwise occupied by his minor son, Robert A. Bolin, Jr., and an automobile owned by Edmund G. Merhige and then being operated by Colleen G. Otash and insured against liability by Hartford Accident & Indemnity Company. After answering with denial of liability, Hartford filed and served a third party petition upon State Farm Mutual Automobile Insurance Company and Henry B. Adoue alleging that on November 22, 1965 on the Lakebound Expressway in the City of New Orleans, Louisiana, Henry B. Adoue, insured by State Farm Mutual Automobile Insurance Company, negligently caused his automobile to strike a vehicle in which Robert A. Bolin was riding as a guest passenger and as a result thereof Bolin suffered the injuries for which he is claiming damages in the present suit. State Farm and Adoue, as third party defendants, filed peremptory exceptions of no cause of action and no right to action to the third party petition of Hartford. The District Court sustained the exceptions and dismissed the third party petition. Hartford Accident & Indemnity Company prosecutes this appeal.

Appellees urge the motion should be sustained because the appellant seeks to appeal from an interlocutory judgment, or a judgment which does not finally dispose of the main demand. Appellant seeks contribution from the third party defendants under the provisions of LSA-C.C. Art. 2103 (as amended Acts 1960, No. 30, § 1), which provided a substantive law base for the enforcement of contribution among joint tort-feasors through the third party demand . The Civil Code article implements Articles 1111--1116 of the Code of Civil Procedure which in Articles 927, 928 and 1034 authorize the third party defendant to plead any of the exceptions available to a defendant in a principal action, which right includes the peremptory exception of no cause or right of action which may be plead at any stage of the proceeding in the trial court prior to a submission of the case for decision. Also it is stated in LSA-C.C.P. Art. 934 that the effect of such an exception where the objection is not or cannot be removed is dismissal of the action.

Judgments which are appealable are those prescribed in LSA-C.C.P. Art. 2083 which reads:

'An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.'

To further support the premise that the judgment under consideration is not a final judgment, movants assert it arises from an incidental demand, that it does not dispose of the entire case, and does not cause appellant irreparable injury. It is argued that by reason of Code of Civil Procedure Articles 1031 and 1115 the appellant will not lose any of his...