American Bankers Ins. Co. of Fla. v. Costa

• Decision Date: 01 December 1958
• Docket Number: No. 21075,21075
• Citation: American Bankers Ins. Co. of Fla. v. Costa, 107 So.2d 76 (La. App. 1958)
• Parties: AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA v. Mrs. Helen COSTA.
• Court: Court of Appeal of Louisiana

Page 76

107 So.2d 76

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA v. Mrs. Helen COSTA.

No. 21075.

Court of Appeal of Louisiana, Orleans.

Dec. 1, 1958.

Rehearing Denied Dec. 15, 1958.

Jesse S. Guillot, New Orleans, for defendant and appellant.

Kalford K. Miazza and Kent Satterlee, Jr., New Orleans, for plaintiff and appellee.

McBRIDGE, Judge.

The plaintiff is the collision insurer of the 1950 DeSoto coupe of Clifton Jones which, in an accident with the automobile of defendant, was damaged beyond repair on January 7, 1956, at about 3:25 a.m., at the intersection of St. Bernard Avenue and North Galvez Street.

Said collision insurer paid to its insured, Jones, the amount of his loss (less $75) resulting from the accident which amounted to $378.61, taking from the insured a subrogation of his claim against the tortfeasor, the defendant, to said amount, and as Jones' subrogee it now sues the defendant to recover from her the amount it paid under its policy liability to Jones. Judgment went against defendant in plaintiff's favor in the trial court and defendant has taken this appeal.

The trial judge referred to the merits of the case defendant's exception of no cause or right of action which has its foundation on the argument that there was not annexed to the petition a copy of the subrogation upon which the plaintiff based its suit. We now overrule the exception if for no other reason than that the document was annexed to the petition, this fact being admitted by the appellant in her brief.

Appellant attacks the validity of the subrogation on the ground that 'it is not properly witnessed nor is it before a Notary Public in compliance with the Civil Code and the law of this State.'

That argument cannot prevail here. No conventional subrogation was necessary as it is well established in our jurisprudence that the loss the insurance company incurred under its policy because of the accident may be recovered in a direct action brought under LSA-C.C. art. 2315 by the insurer against the tort-feasor.

We engaged upon a full discussion of this proposition in Hansen v. Hickenbotham, La.App., 61 So.2d 620, 622, wherein we stated:

'The question raised by the objection to the subrogation seems to have been passed upon by our Supreme Court in London, Guarantee & Accident Insurance Co. v. Vicksburg, S. & P.R. Co., 153 La. 287, 95 So. 771, 772, in which the court, in discussing that identical contention with reference to whether subrogation is necessary in such case, said that the right of an insurer to sue in such situation

"arises from the general provisions of article 2315 of the (LSA-) Civil Code. The article gives a right of action for damages to any and every one who is injured by another's fault. If the loss of $515 which the surety company has sustained was caused by the fault or negligence of the railroad company, the latter is answerable directly to the surety company for the loss. * * *'

'We followed this ruling in Universal Automobile Ins. Co. v. Manisalco, La.App., 148 So. 731.'

Other cases to that effect bearing on the point at issue are Lumber Mutual Fire Insurance Company v. Kemp, La.App., 102 So.2d 248; John M. Walton, Inc. v. McManus, La.App., 67 So.2d 130; Lumbermen's Mutual Insurance Co. v. Ruiz, La.App., 77 So.2d 84, 85. In this latter case we said:

'It was only necessary for plaintiff to allege and prove payment in accordance with its contract of insurance and this it clearly did.'

The petition alleges, among other specifications of negligence, that the accident occurred because defendant failed to heed a red signal light at the intersection. The defendant denied any negligence on her part and, in the alternative, sets up the plea that Jones, plaintiff's insured, was guilty of contributory negligence which bars a recovery by plaintiff.

The intersection at which the accident happened is controlled by the conventional traffic light composed of green, red, and amber lights, and the turning point in the case must be which of the motorists had the favorable light.

Jones was proceeding in a downtown direction on North Galvez Street, and he states that the light showed green, or favorable to him, as he neared St. Bernard Avenue, and that he continued onward and was at about the middle of the intersection when the right side of his automobile was run into by Mrs. Costa's automobile.

On the other hand, Mrs. Costa claims that she, proceeding out St. Bernard Avenue in the direction of the lake, had the favorable green light and that her automobile struck the Jones' car as it emerged into her path from North Galvez Street. She insists Jones must have entered the intersection on a red light because she made entry therein and was moving on the green light in her favor.

In addition to the two motorists a witness named Walker appeared for the plaintiff, and his statement is that he was driving on St. Bernard Avenue in the direction of the river, or opposite to the direction which Mrs. Costa travelled, and had stopped at Galvez Street because the light was red, and that his automobile was in the stopped position when Mrs. Costa entered Galvez Street. Walker states positively that Mrs. Costa attempted the ill-fated crossing of Galvez Street on the unfavorable light which also faced him.

The trial judge unquestionably believed Jones and Walker else he could not have decided the case in plaintiff's favor. In other words, he rejected the testimony of Mrs. Costa which is uncorroborated from any source. Whatever question of veracity there was to be judged, our brother below resolved it in favor of the plaintiff and we are not prepared to say he erred. There is nothing in the testimony of either Jones or Walker which borders on the inconsistent or which would lead the judicial mind to believe that they were not telling the truth, and under the circumstances we could hardly be expected to discard their testimony and to accept Mrs. Costa's statements in its stead. There is a discrepancy as between the testimony of Jones and his witness, Walker, with respect to the color of the Costa car and...