Sloan v. Flack

• Decision Date: 05 March 1963
• Docket Number: No. 788,788
• Citation: 150 So.2d 646
• Parties: Jimmy O. SLOAN et ux., Plaintiffs-Appellants, v. Charles G. FLACK et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 646

150 So.2d 646

Jimmy O. SLOAN et ux., Plaintiffs-Appellants, v. Charles G. FLACK et al., Defendants-Appellees.

No. 788.

Court of Appeal of Louisiana, Third Circuit.

March 5, 1963.

Pharis & Pharis, by F. Jean Pharis and James A. Pharis, Jr., Alexandria, for plaintiff-appellants.

Stafford & Pitts, by Grove Stafford, Gold, Hall & Skye, by Leo Gold, Alexandria, for defendants-appellees.

Before TATE, FRUGE and HOOD, JJ.

TATE, Judge.

The plaintiffs and their minor son were injured in a collision between their automobile and one driven by Poteet. This is a suit to recover for the damages thereby sustained. Included among the defendants was Charles Flack, who was a passenger in the Poteet automobile.

The only issue before us on this appeal concerns the plaintiffs' claim against the passenger Flack, which was dismissed on an exception of no cause of action.

Under the allegations of the petition, the passenger Flack was impleaded as solidarily liable with the negligent driver solely on the basis that Flack was intoxicated and was riding with the intoxicated driver, and that Flack failed in his duty to observe and to protest against the driver's negligent operation of the automobile. The plaintiffs do not seek to implead Flack upon the basis of any imputed negligence of the driver nor on the basis of any car ownership, parentage, employment, agency, joint control, or joint venture relationship between him and the negligent driver of the automobile in which he was riding as passenger. Essentially, the plaintiffs contend that they were injured not only because of the negligence of the Driver of the car which collided with them (which is conceded for purposes of this exception of no cause of action), but also because of negligence on the part of the Passenger therein in his failing to observe and warn the driver against the driver's excessive speed and the driver's encroachment upon the wrong side of the highway and in his failing to keep a lookout for oncoming traffic and to warn the driver of the danger of impending collision.

The plaintiffs thus contend that a person riding in an automobile driven by another is liable to third persons injured through its negligent operation, if the accident might have been avoided by cautionary words or adequate observation upon the passenger's part.

Counsel bases this contention upon a line of jurisprudence barring passengers from recovery against their driver or against third persons involved in an accident because of the 'independent negligence' of the passenger in riding with an intoxicated driver or in failing to protest or warn against the continued erratic driving of their intoxicated driver. See, e.g.: Otis v. New Orleans Public Service, Inc., La.App. 4 Cir., 127 So.2d 197; McAllister v. Travelers Insurance Co., La.App. 1 Cir., 121 So.2d 283; Mercier v. Fidelity & Cas. Co., La.App.Orl., 10 So.2d 262.

These decisions, however, concern only contributory negligence barring recovery of passengers for their own injuries. In speaking of 'independent' (contributory) negligence, the courts were differentiating this type of conduct barring recovery from 'imputed' contributory negligence, whereby a passenger completely free from fault nevertheless cannot recover for injuries caused by the negligence of third persons because the concurring negligence of his own driver is imputed to him as a matter of law because of some special relationship between him and the driver, such as where the passenger owns the car and thus has the theoretical right of control over the driver, Rodriguez v. State Farm Mut. Ins. Co., La.App. 1 Cir., 88 So.2d 432. See 2 Harper & James, The Law of Torts (1956), Chapter 23 ('Imputed Contributory Negligence').

But although a person may be guilty of contributory negligence barring his own recovery for his own personal injuries, there is a distinction between contributory negligence barring recovery as contrasted with negligence per se by reason of which a party is liable to another.

' Negligence involves conduct which is fraught with unreasonable likelihood of harm to Others. Contributory negligence involves such likelihood of harm to Oneself or to One's own interests', 2 Harper & James, The Law of Torts (1956), Section 22.10 (p. 1227). 'Negligence as it is commonly understood is conduct which creates an undue risk of harm to Others. Contributory negligence is conduct which involves an undue risk of harm to The actor himself.' Prosser on Torts (2nd Ed., 1955), Section 51, p. 285. (Italics supplied). 'The distinction lies in that negligence involves any risk to Another, whereas contributory negligence involves a risk of injury to the one injured', 65 C.J.S. Negligence § 116, pp. 707--708. (Italics supplied).

' Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes on persons to protect Themselves from injury', 65 C.J.S. Negligence § 116, p. 706. (Italics supplied.) 'Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to his damage, which falls below the standard to which he is required to conform For his own protection. In general, it resembles negligence,...