Morales v. Employers' Liability Assur. Corp.

• Decision Date: 08 March 1943
• Docket Number: 36780.
• Citation: 12 So.2d 804,202 La. 755
• Parties: MORALES v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Ltd., et al.
• Court: Louisiana Supreme Court

12 So.2d 804

202 La. 755

MORALES v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Ltd., et al.

No. 36780.

Supreme Court of Louisiana

March 8, 1943

Morrison & Sims, of Hammond, and C. Paul Phelps of Ponchatoula, for applicant.

Durrett & Hardin, of Baton Rouge, for respondent.

ROGERS Justice.

Mrs. Mary C Morales sued to recover damages for personal injuries suffered near the Town of Independence in the Parish of Tangipahoa, when she fell from an ambulance while accompanying her sick daughter from the state hospital at Independence to a hospital in the City of New Orleans. The ambulance was the property of the State of Louisiana, or the Department of Public Welfare, and was used for transporting charity patients treated at the state hospital at Independence. At the time the accident occurred, the ambulance was driven by an employee of the hospital whose duty it was to transport patients to and from the institution.

The suit was brought against the State of Louisiana, the State Department of Public Welfare, the State Board of the Department of Public Welfare, the driver of the ambulance, and the Employers' Liability Assurance Corporation, Ltd., the carrier of public liability insurance on the ambulance.

Exceptions filed by the State and its departments were sustained and those defendants were dismissed as parties to the suit. Exceptions filed by the insurance company and the driver of the ambulance were overruled and those defendants then filed a joint answer. After trial on the merits, the district court rendered judgment in favor of the two remaining defendants dismissing plaintiff's suit. The judgment was affirmed by the Court of Appeal, and the case has been brought to this Court on a writ of review.

The record discloses that plaintiff's daughter, Mrs. Camelo Lamonte was brought, in a serious condition, to the hospital at Independence about two o'clock in the morning of March 10, 1940, and that the physicians in charge deemed it advisable to send Mrs. Lamonte to New Orleans at once. About four o'clock that morning Mrs. Lamonte was placed in the hospital ambulance on a cot or stretcher provided for that purpose. At their request Mrs. Mary C. Morales, the mother, Sam Lamonte, the husband, and Pete Morales, the brother of Mrs. Lamonte, over the protest of the driver, were permitted by the surgeon in charge to enter the ambulance. The driver of the ambulance closed the door of the vehicle after the relatives of Mrs. Lamonte had seated themselves therein.

To the right of the stretcher on which the patient lay there were two folding seats on the inside of the ambulance. The plaintiff, Mrs. Morales, and Sam Lamonte, her son-in-law, sat on the front seat near the patient. Mrs. Morales sat on the outside, or the side against the right frame of the ambulance and just to the rear of the door out of which she fell. Pete Morales, the brother of Mrs. Lamonte, sat on the rear seat.

After setting forth the above facts and charging various acts of negligence to the driver, plaintiff alleged that when the ambulance had reached a point near Natalbany, the door located near the right front section of the ambulance the existence of which was unknown to plaintiff, opened without any fault on her part, and she was violently thrown out of the ambulance on to the pavement where she sustained the injuries set forth in the petition.

The ambulance was equipped with three doors. One of the doors was at the rear, through which patients were placed in the vehicle. The other doors were similar to the usual doors of a passenger automobile. One of these doors was on each side of the ambulance and was used by passengers entering the vehicle.

Plaintiff utterly failed to prove the acts of negligence of which she alleges defendants were guilty. On the contrary, the record conclusively shows that plaintiff and the other two relatives of Mrs. Lamonte were not invited by the driver to ride in the ambulance; that, at their own request, they were permitted to do so by the surgeon in charge of the hospital. There was nothing wrong with the lock on the door of the ambulance and all its parts were in good mechanical condition. The driver of the ambulance closed the rear door of the ambulance after Mrs. Lamonte was placed therein. He also closed the side door through which the passengers enter. Both doors were securely closed. The speed of the ambulance was not excessive, and it was not driven in such a way as to cause it to swerve or jerk and the door to fly open. The road was smooth and straight and there was nothing in the speed or manner of driving to indicate that the driver was not exercising ordinary and reasonable care.

There is no merit in plaintiff's contention that the driver was guilty of negligence in failing to provide suitable seating arrangements for the three passengers who, in addition to the patient, rode in the ambulance. No seating arrangements were possible except those which were provided. The plaintiff, Mrs. Morales, her son, and her son-in-law requested and obtained permission to ride in the rear portion of the ambulance. They could not reasonably expect the driver to construct a third seat in the vehicle. The two seats on which they sat were in plain view, and they chose to enter the rear portion of the ambulance and occupy them. They had a better opportunity than the driver of adjusting themselves to the seats.

The Court of Appeal correctly found that plaintiff was a gratuitous guest to whom the driver owed only the duty to exercise the ordinary care of a reasonably prudent man in the management and operation of a motor vehicle. This is the rule prevailing in this state and elsewhere. Lorance v. Smith, 173 La. 883, 131 So. 871.

In their brief, counsel for plaintiff say they have no quarrel with the rule so far as its applies to passengers of vehicles generally, but they argue that the rule is not applicable where the vehicle is an ambulance owned and operated by the State for the benefit of its citizens. But there is no distinction made under the law between a person who requests and obtains the privilege of riding as a gratuitous passenger in an ambulance, state-owned or otherwise, and a passenger who requests and obtains the privilege of riding as a gratuitous passenger in any other kind of motor vehicle. In either case, the person is a gratuitous passenger or guest to whom the driver of the motor vehicle owes the same duty.

Counsel for plaintiff say that deeming it to be of no importance, both the trial judge and the Court of Appeal failed to pass on the question as to which door of the ambulance plaintiff and her co-passengers entered the vehicle prior to the beginning of the trip. Counsel for plaintiff further say that the question must be determined in order to arrive at a proper decision in the case.

Plaintiff her son, and her son-in-law testified that after the patient was placed in the ambulance through the rear door, they entered the vehicle through the same door. On the other hand, the driver of the ambulance testified that after the patient was placed in the ambulance, plaintiff and the other passengers entered the vehicle through the right side door. He further testified that after the passengers had gotton into the ambulance through the side door, he closed this door as well as the rear door. Plaintiff and her fellow passengers claimed that they did not know of the existence...