Bolton v. North River Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: ELLIS
• Citation: Bolton v. North River Ins. Co., 102 So.2d 544 (La. App. 1958)
• Decision Date: 21 April 1958
• Docket Number: No. 4590,4590
• Parties: Rosie BOLTON, Appellant, v. NORTH RIVER INSURANCE COMPANY, Appellee.

Page 544

102 So.2d 544

Rosie BOLTON, Appellant, v. NORTH RIVER INSURANCE COMPANY, Appellee.

No. 4590.

Court of Appeal of Louisiana, First Circuit.

April 21, 1958.

Rehearing Denied May 26, 1958.

Writ of Certiorari Denied June 27, 1958.

Talley & Anthony, Bogalusa, for appellant.

Welton O. Seal, Bogalusa, for appellee.

ELLIS, Judge.

Plaintiff has appealed from a judgment of the district court which sustained an exception of no cause of action to her suit against the defendant for the recovery of damages for personal injuries allegedly caused when a passenger in the back seat of the insured automobile suddenly and without any warning slammed the back door of the automobile on plaintiff's left hand.

The pertinent portions of plaintiff's petition are quoted as follows:

'III. That petitioner has been informed, and believes, and upon such information and belief alleges that the said insurance policy obligates the defendant to pay on behalf of the insured, and on behalf of any person using and operating such vehicle with the permission of the insured, all sums which the insured might become obligated to pay by reason of the liability imposed upon him by law for damages caused by or arising out of the ownership, maintenance use or enjoyment of said Buick automobile; and further to defend any and all such suits brought against any of said persons seeking damages on account of the same.

'IV. That petitioner resides at 1206 Lincoln Street in the City of Bogalusa, Washington Parish, Louisiana; that on or about October 4, 1956 at approximately 4:00 p.m. Mable Alexander, the wife of the insured, while engaged in a community errand, and with the full knowledge and consent of the insured, drove the said Buick automobile to the residence of your petitioner.

'V. That upon arrival, Mable Alexander stopped the said Buick automobile just off the edge of Loncoln Street, in front of your petitioner's residence; that Mable Alexander remained seated on the driver's side of the front seat of said automobile; and that the passenger side of the front seat of said automobile was occupied by Julie Robertson.

'VI. That while seated in this manner Mable Alexander and Julie Robertson proceeded to carry on a conversation with your petitioner; that your petitioner was standing on the outside of said automobile, on the passenger side of same; that in order to see into the automobile and to converse with the occupants thereof, your petitioner leaned against the automobile, placing both of her hands thereon; that while your plaintiff was so standing in this position, Ray Don Bolton, a passenger in the back seat of the said automobile suddenly and without any warning whatsoever slammed the back door of the automobile, which had been standing ajar, on your petitioner's left hand.

'VII. That as a result of the door being slammed on her left hand, petitioner received severe physical injuries, particularly to the little finger of her left hand, from which she suffered severe pain, and that she continues to suffer from her said injuries; that her injuries required treatment by a doctor over a period of weeks; and that the use of her said little finger has been seriously and permanently impaired.

'VIII. That the accident and resulting injury herein set forth was in no way caused or contributed to by your petitioner, but was caused by the gross negligence and carelessness of said Ray Don Bolton, particularly, but without limitation thereto, in the following aspects:

'(a) In slamming said car door without first ascertaining that it was safe to do so.

'(b) In slamming said car door without first giving a warning of his intention to do so '(c) In failing to see what he should have seen, and to do what he should have done.

'IX. That the megligence of Ray Don Bolton, was a direct and proximate cause of the accident and the resulting injury.

'X. Petitioner further shows that the accident and resulting injury herein set forth was caused by the gross negligence and carelessness of said Mable Alexander, particularly, but without limitation thereto, in the following respects.

'(a) In failing to exercise the proper control over her guest passenger, which resulting in the latter's negligence.'

It is the defendant's contention that the above allegations convict the plaintiff of contributory negligence. The defendant relies upon the case of Hebert v. White Top Cabs, Inc., La.App., 8 So.2d 158, and the case of Albrecht v. Gaethe, La.App., 97 So.2d 88. These cases involved a holding, after trial and consideration of all the evidence, that the passenger's action Under the facts therein developed in placing his hand in the door constituted contributory negligence.

The Supreme Court of Louisiana in the case of Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239, 242, in discussing the rule to be applied where an exception of no cause of action was filed to a petition based upon the contention the allegations affirmatively establish the contributory negligence of the plaintiff as the proximate cause of the accident, stated:

'In reaching its decision the Court of Appeal took into consideration the established jurisprudence to the effect that as a general rule contributory negligence, being a special defense, must be pleaded specially and be supported by evidence, but if the allegations of fact of the...