Opinion
No. 2453.
December 5, 1966.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 431-645, OLIVER P. CARRIERE, J.
Garrett Carl, Clifton S. Carl, New Orleans, for plaintiff-appellant.
James F. Quaid, Jr., New Orleans, for Bal Construction Inc., defendant-third-party plaintiff-appellee.
Lemle Kelleher, H. Martin Hunley, Jr., Shirley C. Friend, Jr., New Orleans, for Burgess-Kelly Agency, Inc., and St. Paul Fire and Marine Ins. Co., third-party defendants-appellees.
Donald V. Organ, New Orleans, for Surplus Underwriters, Inc., third-party defendant-plaintiff in reconvention-appellee, for Highway Ins. Co., third-party defendant-appellee.
Before REGAN, YARRUT, and CHASEZ, JJ.
The plaintiff, Henry Hutchinson, filed this suit against the defendant, Bal Construction Co., Inc., endeavoring to recover workmen's compensation in the amount of $14,000.00 representing total and permanent disability caused by injuries which he asserts were incurred during the course of his employment by the defendant.
The defendant answered and denied the foregoing accusation. In addition thereto, the defendant filed a third party petition against several defendants, including Burgess-Kelly Agency, Inc., and St. Paul Fire and Marine Insurance Company, asserting therein that the Burgess agency should have issued a policy for workmen's compensation insurance covering the defendant for the accident and that their failure to do so rendered them liable to the defendant for any amount which it would be obligated to pay to the plaintiff.
After a trial on the merits, the lower court rendered judgment dismissing the plaintiff's suit against the defendant and dismissing the defendant's third party petition against the Burgess-Kelly Agency, Inc., St. Paul Fire and Marine Insurance Company, and the other third party defendants. From that judgment, the plaintiff, Henry Hutchinson, has prosecuted this appeal.
Two of the third party defendants, Burgess-Kelly and St. Paul, have filed a motion requesting us to dismiss the plaintiff's appeal insofar as it affects them. They insist that since the defendant and third party plaintiff has neither answered the plaintiff's appeal nor perfected its own appeal from the judgment of the lower court dismissing his third party petition against them, they are entitled as a matter of law to be eliminated from the appeal. They point to the fact that they were not named as defendants by the plaintiff and that there was no privity existing between them and him.
A review of the jurisprudence discloses that it is well settled that a plaintiff has no right of action against a third party defendant called in warranty and no right to appeal from the judgment dismissing the defendant's call in warranty. If the defendant did not timely appeal or answer the plaintiff's appeal alternatively requesting the rendition of a judgment against the third party defendants sued by him, the third party defendants have a right to be removed from the proceedings.
Duplantis v. Cehan, La. App., 140 So.2d 409 (1962); Mossler Acceptance Corporation v. Naquin, La. App., 30 So.2d 766, 33 So.2d 69 (1947).
For the foregoing reasons, the third party defendants' motion to dismiss is granted, and the plaintiff's appeal is now dismissed so far as it affects the Burgess-Kelly Agency, Inc., and St. Paul Fire and Marine Insurance Company.
All costs incurred herein are to await a final disposition of this appeal.
Motion granted, appeal dismissed.