Veillon v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 15 February 1966
• Docket Number: No. 1633,1633
• Citation: 182 So.2d 802
• Court: Court of Appeal of Louisiana — District of US
• Parties: Gloria D. VEILLON, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee .

Page 802

182 So.2d 802

Gloria D. VEILLON, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee .

No. 1633.

Court of Appeal of Louisiana, Third Circuit.

Feb. 15, 1966.

Preston N. Aucoin, Ville Platte, for plaintiff-appellant.

McBride & Brewster, by Norman Foret, Lafayette, for defendant-appellee.

Before TATE, FRUGE and HOOD, JJ.

FRUGE , Judge.

This is a suit instituted by Gloria D. Veillon, wife of Rodney Veillon, against the insurer of her husband's automobile, State Farm Mutual Automobile Insurance Company, for injuries received as a result of an accident which occurred on January 5, 1964.

The facts of this case are that on January 5, 1964, plaintiff and her husband, together with their two children, left their home for a visit to relatives. Shortly after leaving their home, plaintiff remembered that she had forgotten a package and so Mr. Veillon turned around and drove home for the package. Arriving at their home, plaintiff disembarked to get the package and upon her return she reentered the automobile, seated herself in the right front seat, and closed the door. Having proceeded some three to six feet, Mr. Veillon driving, as testified, in a normal manner, plaintiff fell out of the automobile, falling in a sitting position, and hitting her coccyx bone. As a result of this accident, plaintiff suffered a ruptured intervertebral disc, which was confirmed by a myelogram and which was later removed by an operation.

The record also reveals that several weeks prior to the accident Mr. Veillon had collided with one of his cows at dusk, striking the cow with the right front portion of his automobile. Mr. Veillon testified that he examined the damage done to his car the next morning after this accident and found that, 'The fender had crossed over onto the door and body,' and this kept the right door from opening. In order to correct this, Mr. Veillon used a hydraulic jack to push the right fender back off the door so that the right door could open freely. He made no other repairs on the fender, and since the door was opening and closing to his satisfaction, did not have the car checked by a qualified body or fender man.

The lower court found that the plaintiff, Gloria Veillon, did not sustain the burden of proving negligence on the part of her husband by a preponderance of the evidence. The lower court further concluded that even if the husband, Rodney Veillon, had breached a duty of care to his wife in failing to tell her to be aware of the door (which the lower court did not find from the evidence), then she was contributorily negligent in that she had notice of the alleged defect in the door prior to the accident.

Plaintiff has appealed, alleging the lower court erred in not finding the insured, Mr. Veillon, was negligent in not having the right front door of his automobile repaired promptly, in transporting plaintiff in an automobile with the door in this defective and dangerous condition, and in not warning plaintiff of this said condition.

Plaintiff argues that since the injury to her was caused by an instrumentality (i.e the car) which was under the exclusive control of the insured, an inference or presumption of negligence arises and the doctrine of res ipsa loquitur should apply.

In order for the doctrine of 'res ipsa loquitur' (the thing speaks for itself) to come into play, the inferred negligence of the defendant must be the more probable cause of the injury in that the facts indicate this in the absence of another explanation. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162; Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544, 97 So.2d 389; Malone, Res Ipsa...