Lee v. Peerless Ins. Co.

• Decision Date: 28 April 1965
• Docket Number: No. 10356,10356
• Citation: 175 So.2d 381
• Parties: Ben M. LEE, Plaintiff-Appellant, v. PEERLESS INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 381

175 So.2d 381

Ben M. LEE, Plaintiff-Appellant, v. PEERLESS INSURANCE COMPANY et al., Defendants-Appellees.

No. 10356.

Court of Appeal of Louisiana, Second Circuit.

April 28, 1965.

Rehearing Denied May 21, 1965.

Writ Granted July 2, 1965.

Goff & Caskey, Arcadia, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for plaintiff-appellant.

Bethard & Taylor, Shreveport, for defendants-appellees.

Before HARDY, GLADNEY, and AYRES, JJ.

GLADNEY, Judge.

This is an action ex delicto seeking damages for personal injuries brought by Ben M. Lee against Merle F. Kimmerly, Jr., doing business as Sak's Lounge in Bossier City, Louisiana, and his insurer, Peerless Insurance Company. The defendants filed an exception of no cause of action based on plaintiff's contributory negligence, which, exceptors urge, is affirmatively alleged in the petition. The trial court sustained the exception and the plaintiff has appealed.

The only matter for inquiry presented on this appeal is whether the petition of the plaintiff discloses such contributory negligence on his part as to bar recovery. Upon consideration of this issue negligence or breach of duty by the exceptor will be assumed and we will regard as true the well-pleaded allegations of the petition. The pertinent factual allegations, which must be accepted as true for the purpose of passing on the exception, are:

'4.

'Sak's offers late evening entertainment, for profit, mainly built around the sale of intoxicating liquor, in the prosecution of which female waitresses are employed whose business is to serve and coax customers to drink.

'5.

'Sak's is situated adjacent to and close to U.S. Highway 80, a transcontinental highway and four-laned at this point, and heavily frequented day and night with fast moving vehicles, the only egress from Sak's being to Highway 80.

'6.

'Plaintiff shows that on the afternoon of June 27, 1963, he came to Shreveport, Louisiana, with friends on business and pleasure, and having discharged the business, they went out for a meal and plaintiff and his friends imbibed some alcoholic beverage and about 9:00 o'clock P.M. on that evening, they went to Sak's.

'7.

'Plaintiff shows that when he arrived at Sak's, while he was under the influence of liquor, he was not drunk, but to the contrary, was rational and in control of his faculties. As soon as he got to Sak's, he ordered a few drinks which were sold to him and thereafter, during the evening, he was repeatedly coaxed to drink and plied with drinks by employees of Sak's throughout the evening.

'8.

'Plaintiff shows, on information and belief, that this drinking went on from 9:00 o'clock P.M. to 1:00 o'clock A.M., of the morning of June 28, 1963, closing time for Sak's, and as the evening progressed, he became move and more inebriated and unsteady until he could barely walk, falling down a number of times and on one occasion breaking his watch, all under the eyes of Sak's and its employees.

'9.

'On information and belief, plaintiff alleges that in spite of his obvious increased intoxication, growing helplessness and befuddlement, he was continuously sold drinks and coaxed to buy drinks by Sak's employees until in all, he consumed 30--40 drinks, rendering him, to the knowledge of Sak's and its employees, helpless mentally and almost physically.

'10.

'On information and belief, plaintiff shows that he was in this helpless condition at the closing time at Sak's, which was about 1:30 A.M., June 28, 1963, and notwithstanding Sak's was fully aware of his inability to look after himself, he was required to leave the building of Sak's and turned out on its premises adjacent to Highway 80 and on information and belief, this being his only means of egress, he wandered into this Highway and on account of his helplessness, could not take account of traffic, and he was there, in the highway, run down and injured by a vehicle traveling on the said highway at a point slightly southerly of Sak's and grievously injured.'

Well established in our jurisprudence is the legal principle that an ex delicto action may be dismissed through a plea of contributory negligence where the petition affirmatively makes allegations of contributory negligence. LSA-R.S. 14:91, LSA-R.S. 26:88; LSA-C.C. Art. 2315; Louisiana Power & Light Company v. SAIA et al., 188 La. 358, 177 So. 238 (1937); Gilliam v. Lumbermen's Mutual Casualty Company, 240 La. 697, 124 So.2d 913 (1960); Robinson v. Fidelity & Casualty Company of New York, La.App., 135 So.2d 607 (1st Cir. 1961 Cert. denied).

The factual and legal questions decided by the court in Robinson v. Fidelity & Casualty Company of New York have had an important bearing upon our decision. In that case the father of a seventeen year old boy instituted suit against a liquor vendor for damages allegedly resulting from his son's misconduct after purchasing wine from the defendant. In support of an exception of no cause of action it was contended that the petition affirmatively alleged the son was guilty of negligence and such negligence was a bar to recovery. In its judgment sustaining the exception of no cause of action, the court observed an inconsistency in the common-law states and a diversity of views on the question of the liability of the vendor of liquor who sells to an obviously intoxicated patron who subsequently injures himself.

As to the recognition accorded the rule in this state, the court commented upon the decision in McAllister v. Travelers Insurance Company et al., La.App., 121 So.2d 283 (1st Cir. 1960). A question of liability was raised therein by a guest passenger injured in a vehicle operated by an inebriated driver when that driver negligently had an accident. The court held the guest passenger contributorily negligent even though he argued he had been deprived of the mental capacity to appreciate the danger he was exposing himself to by riding with the driver. In answer to this contention, Judge Landry, as the organ of the court in the McAllister case, said:

'So far as we have been able to determine, the issue appears to be res novas in this state. To adopt the rule advocated by counsel for plaintiff would, in the opinion of this court be contrary to public...