Stewart v. Roosevelt Hotel, Inc.
| Decision Date | 11 January 1965 |
| Docket Number | No. 1652,1652 |
| Citation | 170 So.2d 681 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Donald H. STEWART v. ROOSEVELT HOTEL, INC. |
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ashton R. Hardy, New Orleans, for plaintiff-appellant.
Porteous & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee.
Before McBRIDE, REGAN and BARNETTE, JJ.
The plaintiff, Donald H. Stewart, instituted this suit against the defendant, the New Orleans Roosevelt Corporation, 1 endeavoring to recover the sum of $4,559.00, representing damages for personal injuries incurred by him as a guest of the defendant's hotel when another guest, Thurman L. Pitts, kicked him in the back, causing him to be propelled into the door of an elevator of which they were both occupants.
The defendant answered and denied the foregoing allegations, and in the alternative pleaded the contributory negligence of the plaintiff.
In addition to the foregoing answer, the defendant filed a third party petition against Thurman L. Pitts and his personal liability insurer, Federal Insurance Company, insisting that they should be held liable in damages to the defendant in the event that it be cast in judgment.
In the alternative defendant asserted that the plaintiff's injuries were caused by the active negligence of Pitts, while any negligence on its part was purely technical or constructive.
Further in the alternative, it related that in the event the defendant is found not to be entitled to full indemnification from third party defendants, then it is entitled to contribution from third party defendants as joint tortfeasors.
In response to the third party petition, Federal Insurance Company pleaded the exceptions of prescription and no right or cause of action. The latter exception was predicated upon a release signed by the plaintiff in favor of the Federal Insurance Company and Thurman L. Pitts. 2
The lower court rendered judgment dismissing the exception of prescription, but it sustained the exception of no right or cause of action and dismissed the Federal Insurance Company from the suit.
From the foregoing judgment, New Orleans Roosevelt Corporation, defendant and third party plaintiff herein, has prosecuted this appeal.
The petition reveals that the third party defendant, Thurman L. Pitts, had kicked and inflicted personal injuries upon the plaintiff in the elevator of the Roosevelt Hotel, which is located in the City of New Orleans. It further reveals that on the night of the incident, the defendant's employees knew for some time that Pitts had manifested a quarrelsome and disorderly mood. In any event, after receiving the sum of $300.00, the plaintiff executed a release in favor of Pitts and the Federal Insurance Company, reserving his right to recover additional damages from the defendant herein.
It is conceded by the defendant that in conformity with the rationale emanating from the Case of Harvey v. Travelers Insurance Company, 3 it is not entitled to Contribution from the third party defendants on the theory that they are joint tortfeasors. Therefore, the only question posed for our consideration is whether the release with reservation given to the third party defendants by the plaintiff precludes the defendant, that is the New Orleans Roosevelt Corporation, from proceeding against the third party defendants for Indemnification.
The petition reveals that if the defendant was at fault herein, 4 it was only so through the inaction of its employees in omitting to restrain defendant during the course of his aggressive actions. On the other hand, Pitts was actively at fault when he intentionally kicked the plaintiff in the back. Under such circumstances, judges have reasoned that the individual guilty of actual fault in causing an injury is liable to fully indemnify the party passively or constructively at fault for any damages incurred as a result of the injury.
In Appalachian Corporation v. Brooklyn Cooperage Company, 5 the plaintiff purchased a building from the defendant, and shortly thereafter a night watchman was injured when a door fell on him. The...
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...Rufener v. Scott, 46 Wash.2d 240, 280 P.2d 253; Ingram v. Nationwide Mutual Ins. Co., 258 N.C. 632, 129 S.E.2d 222; Stewart v. Roosevelt Hotel, Inc., 170 So.2d 681 (La.App.); Jacobs v. General Acc. Fire & Life Assur. Corp., 14 Wis.2d 1, 109 N.W.2d 462, 88 A.L.R.2d 1347; Chicago & I.M. Ry. C......
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