Robinson v. Fidelity & Cas. Co. of N. Y.

• Citation: 135 So.2d 607
• Decision Date: 20 November 1961
• Docket Number: No. 5379,5379
• Parties: Eddie L. ROBINSON, Sr., Individually and as Administrator of the Estate of His Minor Son, Lonar James Robinson v. FIDELITY AND CASUALTY COMPANY OF NEW YORK and Winn Dixie Stores, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 607

135 So.2d 607

Eddie L. ROBINSON, Sr., Individually and as Administrator of the Estate of His Minor Son, Lonar James Robinson v. FIDELITY AND CASUALTY COMPANY OF NEW YORK and Winn Dixie Stores, Inc.

No. 5379.

Court of Appeal of Louisiana, First Circuit.

Nov. 20, 1961.

Rehearing Denied Dec. 27, 1961.

Certiorari Denied Feb. 2, 1962.

Pittman & Matheny, Hammond, for appellant.

Christovich & Kearney, New Orleans, for appellees.

Before ELLIS, HERGET and MILLER, JJ.

HERGET, Judge.

Eddie L. Robinson, Sr., individually and as administrator of the estate of his minor son, Lonar James Robinson, filed suit against Winn Dixie Stores, Incorporated and its insurer The Fidelity and Casualty Company of New York. As a basis for the claim the petition alleges the following:

'2.

'Lonar James Robinson, the minor son of petitioner, was born on August 31, 1942, is therefore at the present time seventeen (17) years of age, and lives and resides with his parents, your petitioner, his father, and Leah Dillon Robinson, his mother.

'3.

'On or about January 26, 1960, sometime before noon, your petitioner's minor son purchased from defendant's store, Winn Dixie Stores, Inc., in Hammond, Louisiana, one-half (1/2) gallon of wine.

'4.

'Petitioner's minor son, with two other students of the Hammond colored school drank the wine and returned to the school in an intoxicated condition.

'5.

'Because of the improper conduct of petitioner's said minor son, as a result of being under the influence of this intoxicating liquor, it was necessary for the school officials to notify the police who came and placed petitioner's son in jail.

'6.

'Before being placed in jail and before the police arrived, petitioner's minor son behaved in a most embarrassing manner, attacking the principal and breaking a typewriter.

'7.

'As a result of said episode, petitioner's minor son was charged with being drunk and disturbing the peace and was sentenced to pay a fine and to spend five (5) days in jail.

'8.

'Petitioner shows that his son is small in statute (stature) and young in appearance and that his physical appearance was sufficient notice to the defendant's employees, agents and servants who sold him the liquor that he was a minor of a tender age and that it was improper to make said sale to him.

'9.

'Petitioner further shows that his son has always maintained a good record in both his school studies and his deportment and that he has never been in any type of trouble before.

'10.

'Petitioner shows that this entire episode is due to the negligence and carelessness of defendant's servants, employees or agents, acting in the course and scope of their employment, in making said illegal sale of intoxicating liquor to petitioner's minor son.

'11.

'Petitioner further shows that as a result of the said episode he has been embarrassed, worried, humiliated, has suffered extreme mental anguish and pain, was made to pay a fine of $20.00 for the conduct of his son, and has thereby been damaged in the amount of Five thousand and No/100 ($5,000.00) Dollars.

'12.

'Petitioner further shows that as a result of defendant's agents selling the intoxicating liquor to his son, that the son has been embarrassed, that he was deprived of attending school for a certain period of time, that he was placed in jail, and has otherwise suffered mental and physical pain and suffering, mental anguish and humiliation and has thereby been damaged in the amount of Five Thousand and No/100 ($5,000.00) Dollars.'

To the petition defendants filed exceptions of no cause of action and, after hearing, the Trial Court sustained same and dismissed plaintiff's suit, from which judgment plaintiff appealed to this Court.

Counsel for plaintiff in this Court maintains that under LSA-R.S. 14:91 making it unlawful to sell to any person under the age of 21 years spiritous liquors, and LSA-R.S. 26:88 prohibiting a retail dealer from selling or serving alcoholic beverages to any person under the age of 18 years, and under LSA-C.C. Article 2315 providing that 'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; * * *'--the wrongful act of the defendant in selling wine to plaintiff's minor son, which he drank and became inebriated, caused the damages for which plaintiff seeks recovery.

In this Court and in the trial Court it was the contention of exceptors that the allegations of plaintiff's petition affirmatively allege plaintiff's minor son's own misconduct for which there can be no recovery by him for damages sustained by him growing out of his own misconduct. In other words, it is their contention that where the petition affirmatively makes allegations which conclusively show that the minor son as well as the defendant was guilty of negligence and that the minor's negligence was a contributing cause if not the proximate cause of the injury, the issue of contributory negligence may be properly raised by an exception of no cause of action. We are in accord with exceptors' contention in this respect and in the case of Gilliam v. Lumbermens Mutual Casualty Company, 240 La. 697, 124 So.2d 913, Justice McCaleb as the organ of the Supreme Court, at page 915 (So.2d), opined--though the plea of contributory negligence in an ex delicto action is one which has to be made by the defendant specially in his answer, there is an exception to the rule where the petition itself affirmatively makes allegations of contributory negligence--using this language:

'* * * Nevertheless, there is a well-recognized exception to this rule which pertains only in cases where the affirmative allegations of the petition conclusively show that the plaintiff, as well as the defendant, was at fault and that plaintiff's negligence was a contributing cause of the accident, which would not have occurred but for such negligence. In these matters, the issue of contributory negligence may be raised by way of peremptory plea or exception of no cause of action addressed to plaintiff's petition. See Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238 and cases there cited. However, in order for a suit to be dismissed on an exception, it must appear not only that the negligence of plaintiff has been affirmatively alleged but also that the recitals of the petition are such as to exclude every reasonable hypothesis other than that such negligence was the proximate cause of the accident. Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239. See also Gibbs v. Illinois Cent. R. Co., 169 La. 450, 125 So. 445 and West v. Ray, 210 La. 25, 26 So.2d 221.'

Unquestionably a simple reading of the recitations of plaintiff's petition conclusively shows that any injuries suffered by plaintiff and his son resulted from Lonar James Robinson's own misconduct which was the proximate cause of the alleged injury.

The Legislature of Louisiana has not seen fit to subject liquor vendors to civil liability for selling to intoxicated or minor persons alcoholic beverages and deny to the vendor of the liquor the right to plead the contributory negligence of the vendee in consuming the liquor.

Learned counsel for appellant suggests we should look to the common law states enunciating what he terms to be the 'enlightened' view holding that the vendor of intoxicants illegally selling to a minor may be liable for damages thereby sustained by the minor. He likens the sale by a vendor of liquor to a minor to that in which a vendor serves to an obviously intoxicated adult alcoholic beverages after the consumption of which injuries are sustained by the individual. It is interesting to note that in the cases which he cites in connection with this argument, all of...