Tauzin v. Saint Paul Mercury Indemnity Co., 13751.

Citation195 F.2d 223
Decision Date22 March 1952
Docket NumberNo. 13751.,13751.
PartiesTAUZIN v. SAINT PAUL MERCURY INDEMNITY CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Earl H. Willis, St. Martinville, La., for appellant.

Richard C. Meaux, James J. Davidson, Jr., Lafayette, La., for appellee.

Before HOLMES, BORAH and STRUM, Circuit Judges.

BORAH, Circuit Judge.

Mrs. May Broussard Tauzin brought suit against Liberty Mutual Insurance Company and Saint Paul Mercury Indemnity Company under Act No. 55 of 1930, Statutes of Louisiana, LSA-R.S. 22:655, to recover damages for the death of her minor child, Elaine Ann Tauzin, and for her own personal injuries alleged to have been sustained when the automobile operated by her husband, in which she and her minor daughter were riding, collided with another car which was being driven by Mrs. Ernestine V. Selser. The complaint alleges that the collision was caused by the joint and concurrent negligence of plaintiff's husband and the driver of the other automobile. The prayer is for a judgment in solido against Liberty Mutual Insurance Company, Mrs. Selser's liability insurer, and Saint Paul Mercury Indemnity Company, her husband's liability insurer.

Motions to dismiss were filed on behalf of each defendant. The motion grounds asserted by the defendant Saint Paul Mercury were: (1) To strike the entire complaint; (2) in the alternative, to strike certain allegations therefrom; (3) to dismiss the complaint for failure to state a claim upon which relief could be granted; and (4) to stay proceedings until plaintiff's husband be made a party plaintiff.

The motions were set down for hearing and on the day fixed and prior to the argument, counsel for plaintiff informed the court that Mrs. Tauzin had compromised her action against Liberty Mutual. The court thereupon heard arguments on the motion filed by Saint Paul Mercury.

The District Court granted the motion dismissing the complaint stating: "The wife's action against Saint Paul is based upon the same cause of action that would arise from the negligence of the plaintiff's husband, as the insurer stands in his shoes. In such circumstances, she has no cause of action and the complaint as against Saint Paul should be dismissed."

We are of opinion that the District Court erred. It would seem that plaintiff has stated enough to withstand a mere formal motion directed only to the face of the complaint. The courts have repeatedly said that there is no justification for dismissing a complaint for insufficiency except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim pleaded. If the facts alleged in a complaint reveal that a plaintiff is entitled to any kind of relief, it is sufficient and should not be dismissed.

We are of the opinion that plaintiff has in her complaint stated a claim for damages for her own personal injuries and, consequently, that the defendant's motion to dismiss was erroneously granted. Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A.L.R. 148; Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191. Indeed, it is freely admitted by appellee that the cited cases do hold that a wife may institute a suit, and maintain an action, against the liability...

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  • Dann v. Studebaker-Packard Corporation, 13940.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 6, 1961
    ...253 F.2d 780, 782. 42 Chicago & N. W. Ry. v. First Nat. Bank of Waukegan, 7 Cir., 1952, 200 F. 2d 383, 384; Tauzin v. St. Paul-Mercury Indemnity Co., 5 Cir., 1952, 195 F.2d 223, 224; Chicago & N. W. Ry. Co. v. Chicago Packaged Fuel Co., 7 Cir., 1950, 183 F.2d 630, 632; Dioguardi v. Durning,......
  • Millet v. Godchaux Sugars, 16221.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 8, 1957
    ...5 Cir. (Fla.), 227 F.2d 124, 127; Thomas v. Atlantic Coast Line R. Co., 5 Cir. (Fla.), 201 F.2d 167, 170; Tauzin v. Saint Paul Mercury Indem. Co., 5 Cir. (La.), 195 F.2d 223; Byrd v. Bates, 5 Cir. (Tex.), 220 F.2d 480; King Edward Emp. Federal Credit Union v. Travelers Indem. Co., 5 Cir. (F......
  • Reagan v. Traders & General Insurance Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 5, 1958
    ...Corporation, 5 Cir., 240 F.2d 763; Nettles v. General Accident Fire & Life Assur. Corp., 5 Cir., 234 F.2d 243; Tauzin v. St. Paul Mercury Indemnity Company, 5 Cir., 195 F.2d 223. ...
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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 3, 1959
    ...v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; John Walker & Sons v. Tampa Cigar Co., 5 Cir., 197 F.2d 72; Tauzin v. St. Paul Mercury Indem. Co., 5 Cir., 195 F.2d 223; Weil Clothing Co. v. Glasser, 5 Cir., 213 F.2d 296, at page 299; Atwood v. Humble Oil & Ref. Co., 5 Cir., 243 F.2d 885;......
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