Lewis v. TillLewis v. Till
Bobby LEWIS et ux.,
v.
Leslie Michael TILL et al.
Supreme Court of Louisiana.
Alonzo P. Wilson, Trimble, Randow, Smith & Wilson, Alexandria, for plaintiffs-applicants.
*738 James A. Bolen, Jr., Gregory S. Erwin, Bolen & Erwin, Alexandria, for defendants-respondents.
WATSON, Justice.
Plаintiffs, Bobby and Jennifer Bertram Lewis, seek damages for the death of their eighteen month old son Scott. At issue is whether the father has a cause of action against the homeowners' insurer if the negligence of the mother contributed to the accident.
Scott A. Lewis died after he was hit by a GMC pickup truck in the driveway of 2228 Madeline Street, Alexandria, Louisiana, on July 7, 1978. Negligence was averred оn the part of the minor driver of the pickup, Leslie Michael Till. The various defendants answered alleging contributory negligence on the part of the mother. The father, Bobby Lewis, then made an alternative demand against the homeowners' insurer, Fireman's Fund Insurance Company, asserting that, if his wife were negligent, he is entitled to recover against Fireman's Fund. Fireman's Fund received a summary judgment on thе alternative demand as to all claims except funeral expenses. The Court of Appeal, Third Circuit, affirmed the summary judgment as to the claim for general damages. The question of medical and funeral expenses under the policy was remanded for trial on the merits. The trial and appellate courts relied on Carter v. Salter,
The Court of Appeal correctly disposed of the issue of medical and funeral exрenses; the question of whether those expenses are covered by the policy must await trial on the merits. Lewis v. Till,
Under LSA-C.C. art. 2315, Scott's right tо recover damages for his fatal injury survives in favor of the parents and they also have a right of action to recover thеir own damages for his wrongful death. The question is whether the father's claims are barred if the mother were negligent.
THE SURVIVAL ACTION:
"The plaintiffs inherit this aсtion for damages suffered by the child from him, and it must be treated as though the child was alive and suing for an injury to himself." Westerfield v. Levis,
Scott Lewis was too young tо be capable of legal fault. Any contributory negligence by his mother is irrelevant to the child's cause of action against another tort-feasor whose fault was responsible for his damages. "[T]he negligence of the child's parents has nothing to do with the issue." Westerfield v. Levis, supra, at
If Jennifer Lewis were guilty of negligenсe which was a concurrent cause in fact of her son's injuries, he could not sue her because of
There is no sound reason for imputing any negligence by the mother to the father. The obligations of the civil сontract of marriage do not include liability for a spouse's torts. Adams v. Golson,
Imputing the negligence of the wife to the husband but not the husband's to the wife has been justified on the ground that the wife's damages were separatе property and the husband's community property. Vitale v. Checker Cab Co., supra. Thus, a wrongdoing wife might benefit from a husband's recovery on behalf of the cоmmunity. Since any enrichment of the community would have been under the husband's control, direct benefit to the wife is questionable. This is a tenuous basis on which to defeat an otherwise valid action. The jurisprudential distinction is an unreasonable sex based discrimination which violates the Louisiana Constitution of 1974. Every person is guaranteed law and justice, administered without partiality, for injury to him or her. Article 1, Sеction 22, Louisiana Constitution of 1974.[1] Imputing the negligence of the wife to the husband, but not vice versa, is a form of partiality which is unjustified by statutе and cannot be supported. An innocent party should not be barred from recovery because of an irrelevant legаl relationship with a negligent party. Negligence of either spouse cannot be imputed to the other merely becausе of the marital relationship. Gaspard v. Lemmaire, supra. It is necessary to overrule Monge v. New Orleans Ry. & Light Co., supra; Carter v. Salter, supra; and other jurisprudence to the contrary.[2]
ACTION FOR WRONGFUL DEATH:
The parents' right to recover damages for the loss of their son differs from the survival action in that any contributory negligence by either bars recovery by that individual. Westerfield v. Levis, supra. However, again, any negligence by the wife would not be imputed to the husband. There is no allegation of negligence on the part of the father. If the mother were negligent, her action for her son's wrongful death is barred by that negligence. The father's right to recover is unaffected.
For the foregoing reasons, the partial summary judgment in favor of Fireman's Fund Insurance Company is reversed and the matter is remanded for trial on the merits.
REVERSED AND REMANDED.
MARCUS, J., dissents and assigns reasons.
LEMMON, J., concurs.
MARCUS, Justice (dissenting).
I see no compelling reason to overrule a long line of jurisprudence holding that the negligence of his wife is imputed to the husband. La.Civ.Code art. 2344 (Acts 1979, No. 709, § 1, eff. Jan. 1, 1980) now provides that damages due to personal injuries sustained during the existence of the community by a spouse arе separate property. Accordingly, it will no longer be necessary to impute the negligence of the wife to the husband to prevent the wife from benefiting from enrichment of the community.
Moreover, I do not consider it proper for the court to аddress the constitutionality of the rule of law imputing the wife's negligence to the husband but not the husband's negligence to the wife because this issue was not pleaded or raised in the trial court.
*740 A litigant who fails to plead the unconstitutionality of a statute in the trial court сannot raise the constitutional issue in the appellate court. Johnson v. Welsh,
Accordingly, I respectfully dissent.
NOTES
Notes
[1] Article 1 § 22, Louisiana Constitution of 1974 provides:
"All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."
[2] Reversal of these cases, which rely on an "antique rule", brings Louisiana in line with the overwhelming majority of other jurisdictions. Prosser Torts 4th Ed., p. 914.