Benson v. Metropolitan Cas. Ins. Co. of N. Y.
| Decision Date | 22 March 1955 |
| Docket Number | No. 8295,8295 |
| Citation | 79 So.2d 345 |
| Parties | Marion A. BENSON, Plaintiff-Appellee, v. The METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK and Firemen's Insurance Company of Newark, New Jersey, Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Jackson, Mayer & Kennedy, Shreveport, for appellants.
Bolin, Lowe & Fish, Minden, for appellee.
This action in tort was instituted by the plaintiff, Marion A. Benson, a young man of the age of 25 years, against the defendants Metropolitan Casualty Insurance Company of New York and Firemen's Insurance Company of Newark, New Jersey, as the insurers of an automobile owned by M. T. Browning, seeking to recover the sum of $10,000 as the result of personal injuries sustained in an accident occurring August 13, 1949, on the Bossier-City Plain Dealing paved highway, a few miles south of Plain Dealing and while a guest of one Ted Tyler, the driver of said automobile and the grandson of the said M. T. Browning, with whose consent and permission said car was being operated at the time.
From a judgment in plaintiff's favor, as prayed for, the defendant, Metropolitan Casualty Insurance Company of New York filed an appeal bond perfecting a suspensive and devolutive appeal to this court.
Plaintiff charged that Ted Tyler was driving and operating said automobile at a fast and reckless rate of speed under the circumstances prevailing at the time, without keeping a proper lookout and without keeping said automobile under control, and in striking one of 3 mules ambling diagonally across the highway, without slowing down, stopping or taking other precautions to avoid the accident.
To plaintiff's demands, defendants tendered the following defenses:
1. That plaintiff's demands had been settled, compromised and adjusted, which transaction and compromise had the force and effect of res adjudicata, which they specially plead in bar of plaintiff's claims;
2. That plaintiff and Ted Tyler were returning from a trip jointly undertaken and for their mutual interest and benefit, on which trip the vehicle was under their joint control and supervision;
3. That it was through no fault or negligence of the driver that the accident occurred;
4. That plaintiff was guilty of negligence, barring his right to recover, in that he was fully aware of the manner in which the vehicle was being driven and made no protest thereto, and in that he failed to keep a proper lookout for his own safety, and that by the use of proper care, he could have and should have observed the presence of the mules upon the highway and should have warned the driver of their presence, and in riding with his arm partially outside the window of the automobile, which purported acts of negligence were alleged to constitute the proximate cause of the accident and the injuries resulting therefrom, or, in the alternative, contributory negligence on the part of the plaintiff, barring his recovery.
A resume of the facts appears necessary to a proper presentation and discussion of the issues thus raised. The material facts are not disputed. At the time of the occurrence of this accident Benson was living and working in Springhill, Louisiana. On the afternoon of August 13, 1949, a friend of his, Ted Tyler, who had borrowed his grandfather's automobile, invited Benson to accompany him to Shreveport, Louisiana, to a night baseball game. After driving to Shreveport and attending the game, they began their return trip, with Tyler again the driver, with plaintiff seated on the righthand side of the front seat. At the time of the accident, the car was proceeding in a northerly direction on a comparatively straight section of the Bossier City-Plain Dealing highway and, after proceeding over a hill or incline, the driver observed 3 mules ambling from the righthand shoulder towards and across the highway in front of the car. Without slowing down, Tyler swerved the car to the left to avoid striking the mules and then back to the right to prevent a collision with an oncoming car. In the execution of these maneuvers, the car struck one of the mules and this mule struck plaintiff's arm, partially protruding out the window, between the elbow and wrist, producing a comminuted fracture of the right humerus from his elbow to the shoulder and a comminuted fracture of both the radius and ulna of his right arm. After an unsuccessful attempt to secure medical assistance in Plain Dealing, plaintiff and Tyler proceeded towards Springhill and, in the course of the trip, they were delayed by a flat tire, after the occurrence of which a passerby took plaintiff to Gray's Clinic and Hospital in Springhill, where he arrived about 2:00 A.M.
Dr. Gray administered first aid treatment and sedatives and narcotic drugs to relieve pain. Plaintiff remained in the clinic under the influence of sedatives until Wednesday morning, when he was transported by plane to a hospital in Meridian, Mississippi, and was admitted to the Rush Memorial Hospital, where he remained for a period of 4 weeks, after which he was treated almost daily for several months. He again returned to that hospital, where he was again placed under anesthesia, because pins placed in his arm in setting the fractures were protruding, causing pain. The pins were adjusted in that operation.
The record discloses the expenditure of an amount exceeding $1,700 for medical treatment and professional care.
About 2:00 P.M. of August 16, 1949, one R. D. Coats, an insurance adjuster employed by defendants to make an investigation of this case, called at the Gray Clinic and Hospital in Springhill. Coats ascertained from the nurse in charge that it was permissible to talk to plaintiff and that he was not under the influence of opiates. In this connection we note that the hospital chart showed and the nurse admitted in her testimony that only 30 minutes before she had given plaintiff an oral dosage of nembutal. The adjuster visited plaintiff, obtained a statement as to his version of the accident, after which he told plaintiff there was no liability on the part of the defendants for the personal injuries sustained by him but that the $1,000 maximum hospital and medical expense, as provided in the policy, would be paid regardless of legal liability. Whereupon he then offered $100 in full settlement of any and all other claims for his injuries. Plaintiff's signature to a release was then obtained, wherein he acknowledged receipt of the amount, which, however, he did not get at that time due to the adjuster's lack of authority to draw drafts on defendants. However, a draft was mailed to plaintiff August 31, 1949, which he neither endorsed nor cashed. The draft was not immediately returned, but plaintiff either kept it in his possession or delivered it to his attorneys, who, however, returned it in May, 1950, prior to the institution of this suit. Defendants made no further attempts, through tender of the money or otherwise, before or during the trial, to pay said sum.
Dr. Gray testified that plaintiff was, at all times while in his clinic, under the influence of pain-relieving drugs and that on the day the release was signed plaintiff was given at 1:00 o'clock P.M. nembutal and aspirin and a half grain of codeine for relief of pain. After having taken these sedatives, Dr. Gray said that plaintiff was in 'a kind of foggy sort of condition', and continued and that 'It gives a man a feeling of well-being, a feeling of euphoria--everybody is his friend and he just feels fine'; and that plaintiff did not have the power to think or reason things out. Dr. Gray was corroborated by the testimony of Dr. Garrett that the amount of sedatives given plaintiff was such as to seriously impair his mental faculties and power of reasoning.
With this background of the facts before us, we will now revert to a discussion of the principal issues and defenses urged by defendants in the order enumerated hereinabove. The first relates to the compromise settlement. It is to be observed that plaintiff made no reference to this purported settlement in his petition and, consequently, there was no demand or prayer for its rescission.
The law of this State is, so states the Code, that voluntary compromise agreements, lawfully consummated, have the force of a definitive judgment. LSA-C.C. Art. 3078 provides:
The jurisprudence is to the same effect. In quoting from Russ v. Union Oil Co., 113 La. 196, 205, 36 So. 937, it was stated in Stoufflet v. Duplantis, 208 La. 186, 23 So.2d 41, 44:
Russ v. Union Oil Co., 113 La. 196, 36 So. 937, 940. Also see: Cassidy v. Joseph, 204 La. 664, 16 So.2d 225; Misuraca v. Metropolitan Life Ins. Co., 199 La. 867, 7 So.2d 167; Sellwood v. Phillips, ...
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