Danos v. St. Pierre

• Decision Date: 21 January 1980
• Docket Number: No. 12755,12755
• Citation: 383 So.2d 1019
• Parties: Darrell DANOS et al. v. Terry ST. PIERRE et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1019

383 So.2d 1019

Darrell DANOS et al. v. Terry ST. PIERRE et al.

No. 12755.

Court of Appeal of Louisiana, First Circuit.

Jan. 21, 1980.

Darryl J. Carimi, Gretna, for petitioners and appellees.

Albert Forrest, New Iberia, John Ladd Lanier, Thibodaux, Steven B. Witman, John J. Hainkel, Jr., New Orleans, for defendants and appellants.

Lloyd T. Bourgeois, Thibodaux, Harold J. Lamy, New Orleans, for defendants and appellees.

Terry B. Loup, Baton Rouge, for plaintiffs (Suit No. 84672) and appellees.

Robert Blomefield, New Orleans, for plaintiffs (Suit No. 34002) and appellees.

EN BANC.

PER CURIAM:

A basic but delicate question confronts us on this appeal: Can a fetus whose stillbirth results from the negligence of a third person be considered a "person" for purposes of the wrongful death provisions of La.C.C. art. 2315?

The issue arises in a suit for wrongful death, personal injury and property damage brought as a result of a head-on collision.¹

The collision occurred on August 23, 1975, at about 4:00 A.M. on Louisiana Highway 1 in Lafourche Parish, Louisiana. The vehicles involved were the 1971 Chrysler automobile owned by Eroy Danos and driven by Gayle Naccio Danos in which her husband, Darrell A. Danos, was an occupant, and the 1973 Chevrolet automobile owned by Rhonda Rousse Malbrough and driven by Terry St. Pierre in which the owner and two guest passengers in the backseat, Jenny Lynn Autin and Nolan Ougel, Jr., were occupants. The accident happened when the Malbrough vehicle veered into the lane of traffic of the Danos vehicle.

Immediately before the wreck, St. Pierre and his passengers had been partying for several hours at a local nightclub where all had consumed copious quantities of alcoholic beverages. They were well acquainted with each other and they knew that St. Pierre was intoxicated when they left the nightclub. At the time of the accident Mrs. Danos was seven months pregnant, and was to be shortly thereafter delivered of a stillborn child. Jenny Lynn Autin and Rhonda Rousse Malbrough died as a result of the injuries they sustained in the accident. Mr. and Mrs. Danos, St. Pierre and Ougel were severely injured.

The plaintiffs, Darrell Danos, Gayle Danos and Eroy Danos, sued the defendants, St. Pierre, the Malbrough (Rousse) Estate, Jenny Lynn Autin, and Ougel, and the liability insurers, Aetna Life & Casualty Insurance Company and State Farm Mutual Automobile Insurance Company.² Later, Allstate Insurance Company, the Danos' uninsured motorist carrier, was added as a defendant, as was Southern Farm Bureau Casualty Insurance Company, as the insurer of Autin, whose death occurred after suit was filed.

The plaintiffs alleged that the collision was caused by the joint negligence of Terry St. Pierre, in that he was driving an automobile while under the influence of intoxicating beverages, driving at an excessive rate of speed and crossing the center line of the highway into the path of oncoming traffic; and of Jenny Lynn Autin, Nolan Ougel, Jr. and Rhonda Rousse Malbrough, all of whom were passengers in the Malbrough vehicle, and whose negligence was alleged to have consisted of their having been fully aware of St. Pierre's intoxicated condition and of their failure to take steps to prevent him from driving the Malbrough car.

The trial court held that the collision resulted from the joint negligence of the driver and the occupants of the Malbrough vehicle, and awarded judgment in favor of the plaintiffs against all defendants. The defendants, except Ougel, have appealed; he is not before this court and the judgment is final as to him.

The principal issues before us concern:

(1) Whether the parents of a child born dead can recover for its wrongful death.

(2) Whether the owner of an offending vehicle who allows a person she knows is intoxicated to operate her vehicle is guilty of actionable negligence.

(3) Whether the guest passenger of an offending vehicle who knows or should know that the driver is intoxicated is, by such knowledge, answerable solidarily with the driver pursuant to La.C.C. 2324.

There is also a procedural question concerning the validity of the judgment against the Malbrough (Rousse) Estate and an issue of quantum.

WRONGFUL DEATH

It is the holding of a majority of this court that plaintiffs have a cause of action and can recover damages for the loss of their child, which was stillborn as a result of the accident herein. Reasons for and against this holding will be expressed in concurring and dissenting opinions, to be attached hereto.

LIABILITY OF AUTOMOBILE OWNER

The driver of the Malbrough car, Terry St. Pierre, was undoubtedly negligent. He was operating the car while in an intoxicated condition which caused him to invade the traffic lane of the Danos automobile at a high rate of speed and collide head-on with it. The trial court found, and the evidence supports its finding, that Rhonda Rousse Malbrough, the owner, knew that St. Pierre was intoxicated to the point where he was in no condition to drive when she entrusted the car to him.

We thus have no difficulty in affirming the trial court's holding that the owner of the Malbrough vehicle was negligent and was solidarily liable with the driver. It is established law that the owner of an automobile who knowingly entrusts it to an intoxicated, or otherwise incompetent, driver is responsible for the harm resulting from the incompetent operation of the vehicle. Baader v. Driverless Cars, Inc., 10 La.App. 310, 120 So. 515 (Orl.1929); see also Kemp v. Fourmy, 265 So.2d 651 (La.App. 2 Cir. 1972); Winzer v. Lewis, 251 So.2d 650 (La.App. 2 Cir. 1971), writ refused, 259 La. 934, 253 So.2d 379 (1971); Annot., Liability Based on Entrusting Automobile to One Who Is Intoxicated or Known to be Excessive User of Intoxicants, 19 A.L.R.3rd 1175.

LIABILITY OF GUEST PASSENGERS

In holding the guest passengers, Autin and Ougel, solidarily liable with the driver, the trial judge stated:

"The claims in the companion suits were dismissed against the plaintiffs in this suit and the other defendants in each of those suits because the court felt the evidence had established a clear case of assumption of risk by the three guest passengers. This finding was sufficient to deny recovery in those suits. The court finds as a fact, however, that the guest passengers in the Rousse (St. Pierre) vehicle were also joint tort-feasors with the driver, Terry St. Pierre, and hence they, their insurers, and their estates are liable to the plaintiffs in this case."

The trial court's holding was based on its finding that the St. Pierre group had been partying together for several hours at a nightclub and that all members of the party knew that St. Pierre was in an intoxicated condition when they left the club. The holding was apparently based on La.C.C. art. 2324, which provides:

"He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act."

The decision of the trial court was premised on the awareness of the guest passengers of the intoxicated condition of the driver. Finding as a fact that the passengers knew of St. Pierre's excessive intoxication, the trial court concluded that the guest passengers, including the owner, had thus assumed the risk, which barred their own recovery.

The trial judge, from this finding and holding, then assumed that the guest passengers were necessarily joint tortfeasors. Putting it mildly, this is a non sequitur. The mere fact that a guest passenger is precluded from recovery of damages because of assumption of risk or contributory negligence does not inexorably lead to the conclusion that he has breached a duty owed to some third person injured as a result of the accident.

We find from the facts and circumstances of the instant case that there was no special relationship between Autin and the driver, or between Autin and the injured third persons, which imposed a duty upon her to persons outside of the vehicle. Mere knowledge or awareness of the intoxicated condition of the driver, alone, does not create a relationship which imposes a duty upon a guest passenger to protect against the particular risk involved in the instant case. Sloan v. Flack, 150 So.2d 646 (La.App. 3rd Cir. 1963).

This position is consistent with the rule that before a plaintiff can recover from a passenger in the defendant's motor vehicle, he must show a joint interest of the driver and the passenger or an equal right in the passenger to control the driver's operation of the vehicle. Malbrough v. Davidson, 219 So.2d 313 (La.App. 1st Cir. 1969), writ denied 254 La. 10, 222 So.2d 66 (1969). We find nothing in this case to take it out of that general rule.

There is nothing in the record that shows that the passenger had any control or custody over the motor vehicle. She had no interest in the automobile which she could entrust to the driver. The evidence does not establish that Autin was in control of the driver; nor is there evidence of intimidation or forceful persuasion by her. On the basis of the evidence in this record we cannot be persuaded to extend Article 2324 to hold the guest passenger liable for the plaintiff's damages.

Therefore, we reverse the trial court's finding of fault on the part of Jenny L. Autin.

WAS THE MALBROUGH (ROUSSE) ESTATE PROPERLY BEFORE THE COURT?

The original petition alleged that Rhonda Rousse Malbrough, the owner of the Chevrolet automobile, being fully aware of the driver's intoxicated condition, entrusted the vehicle to him and therefore that the Malbrough (Rousse) Estate, through the administrator of her Estate and/or her heirs, was liable for the damages. It was alleged that her Estate and her insurer were jointly liable with St. Pierre, the negligent driver. The record shows that the Estate, through the succession representative, filed responsive pleadings, made an appearance...