Aucoin v. Lodrigues

252 So. 2d 758, 1971 La. App. LEXIS 5650
CourtLouisiana Court of Appeal
DecidedSeptember 2, 1971
DocketNo. 8519
StatusPublished
Cited by3 cases

This text of 252 So. 2d 758 (Aucoin v. Lodrigues) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aucoin v. Lodrigues, 252 So. 2d 758, 1971 La. App. LEXIS 5650 (La. Ct. App. 1971).

Opinion

LANDRY, Judge.

This appeal by plaintiff, Clarville Au-coin, is from the judgment of the trial court dismissing appellant’s demands for and on behalf of appellant’s minor son, Peres Aucoin, for damages for personal injuries sustained when young Aucoin fell out of the rear door of an automobile operated by David Lodrigues, minor son of defendant, Alvin Lodrigues. We affirm.

Made defendants herein are the senior Lodrigues, his insurer, Phoenix Insurance Company of- Hartford (Phoenix), H. J. Kober, father of the minor, Wayne Kober (on whose lap young Aucoin was seated at the time of the accident), and Kober’s insurer, the Travelers Insurance Company (Travelers).

The accident happened in Bayou Vista, St. Mary Parish, on November 27, 1968, at approximately 6:00 P.M. Young Lod-rigues, driving his father’s 1962 Ford Sedan, was proceeding northerly along Southeast Road. Accompanying Lodrigues as guest passengers were six of his teenaged acquaintances. David Blakeman was seated next to Lodrigues. Mark Lasseigne was seated on Blakeman’s right. Galen Guyotte was seated next to the left rear door. Aucoin was next to Guyotte. D. J. Arnold was on Aucoin’s right, and Wayne Kober sat next to the right rear door. The boys were returning from a “scramble course” located in the vicinity, a scramble course being an open area where teenagers meet to engage in the sport of riding motor bikes. While at the course, Lod-rigues’ vehicle became stuck in mud. A truck was sent for to dislodge the mired vehicle. Upon returning to Bayou Vista, Lodrigues followed closely behind the truck which had no tail lights. He explained he took this precaution to protect the truck from being run into from the rear by an unsuspecting motorist. Lod-rigues, traveling at a speed of approximately IS to 25 miles per hour, approached the intersection of Southeast Road and Middleroad where Aucoin desired to get out. Lodrigues slowed the speed of his vehicle, came to a stop sign at the intersection and stopped. As Lodrigues was preparing to stop, Aucoin began to shift position to exit from the right rear door because the left back door was inoperable and would not open. Aucoin moved to his right, sat on Kober’s lap and just as the vehicle was either stopped or almost stopped, the right rear door flew open. Aucoin fell out of the car, landed on his feet, ran a few steps alongside the vehicle and fell fracturing both bones of his left forearm and injuring his left shoulder.

Plaintiff alleges Lodrigues senior was negligent in allowing his son to drive an automobile with a defective right rear door and that the younger Lodrigues was negligent in not warning the junior Aucoin of the defect, and also in driving at an excessive rate of speed, making a sudden stop, [760]*760and not stopping the vehicle in a careful manner when he knew or should have known the right rear door was defective and might suddenly open of its own accord. Defendant Kober is said to be liable for the negligence of his son in opening the door while the vehicle was in motion, and failing to warn the Aucoin lad that the door was open. The trial court exonerated the Lodrigues youth of all negligence. The trial court also found that Wayne Kober was negligent in opening the door while the vehicle was in motion, but denied plaintiff recovery on the ground that the Aucoin lad was contributorily negligent in shifting position while the vehicle was still moving.

Phoenix and Travelers each filed a motion for summary judgment predicated upon lack of coverage. Both motions were sustained by the trial court.

We are here concerned with factual issues only. It is well established that the findings of the trier of fact will not be disturbed upon appeal unless found to be manifestly erroneous. Beeland v. Smith, La.App., 237 So.2d 428.

David Lodrigues testified in súbstance that the automobile he was driving had practically been given to him by his father. The vehicle was old and somewhat battered, but was in good running condition. The left rear door of the car had been inoperable for some time prior to the accident, and could not be opened. David was aware that about three months prior to the accident, his father told him that on one occasion while the father was driving the car, the right rear door suddenly flew open. David himself experienced no such incident with the right rear door, and was not aware that it was defective in any manner. He stated he was proceeding toward Bayou Vista at a slow rate of speed following closely behind the truck ahead for the reason above stated. When Aucoin asked to be let out at the corner of Middle-road (because he lived nearby), Lodrigues stopped and immediately thereafter he heard Aucoin yell after alighting from the vehicle. Lodrigues stated he was aware that Aucoin was shifting position toward the right rear door as the vehicle was being brought to a slow, uneventful stop. He also stated he did not know how or why the door opened. Neither did he know whether Aucoin jumped or was pushed from the vehicle. In short, he stated he did not know how the accident happened.

Peres Aucoin, age IS at the time of trial, testified he was seated on the extreme left of the rear seat with Guyotte to his right, Arnold to the right of Guyotte and Kober next to the right rear door. Because Lod-rigues had told him that the left rear door would not open, he began to move toward the right rear door as Lodrigues slowed to stop to let him out. While the car was moving at about IS miles per hour, he began changing position, and eventually seated himself on Kober’s lap. He explained that he was facing directly toward the front of the car. His feet were on the floor of the car, and he was being held by Kober’s left hand which was around his waist. AuCoin said his own left hand was on the back of the seat, and his right hand “on the door near the window.” He also stated that the door suddenly swung open, he grabbed for the door, and at the same time felt a hand on his back. He landed on the road while the car was in motion. He attempted to “run with the car”, and did so for a few steps, and then tripped and fell. He slid on his hand for a few feet and then rolled over to the side. In a prior unsigned statement to Phoenix’s adjuster, Bill Cook, the verity of which he conceded, Aucoin stated that as he was seated on Kober’s lap, the door was half open, and that he was holding onto the handle to keep it from opening all the way. He also said in his statement that he had his hand on the arm rest, and when the door flew open, he “went for it.” At another point in his statement, he said that he was holding onto the door handle with his right hand, and someone shoved him in [761]*761the back, and he fell out of the car. His testimony at trial, however, was to the effect that he did not jump out, and neither was he pushed out. He stated he felt a “jerk” because the car stopped suddenly. He lost his balance, the door flew open, and he fell out. At another point in his testimony at trial, he conceded that Lodrigues made a smooth stop, and there was no jerking of the vehicle at the time of the accident. At other points in his statement and testimony at trial, Aucoin testified variously that at the time of the accident, he had his hand on the arm rest of the door or the door handle itself. He also stated that he was holding onto the door handle of the half-opened door.

Wayne Kober’s testimony exonerates Lodrigues of any negligent act as regards the vehicle’s operation. He stated that Lod-rigues came to a slow smooth stop to let Aucoin out.

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Related

Smith v. Travelers Ins. Co.
418 So. 2d 689 (Louisiana Court of Appeal, 1982)
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319 So. 2d 850 (Louisiana Court of Appeal, 1975)
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273 So. 2d 892 (Louisiana Court of Appeal, 1973)

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Bluebook (online)
252 So. 2d 758, 1971 La. App. LEXIS 5650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aucoin-v-lodrigues-lactapp-1971.