Brown v. New Amsterdam Cas. Co.

• Decision Date: 29 June 1962
• Docket Number: No. 46014,46014
• Citation: 142 So.2d 796,243 La. 271
• Court: Louisiana Supreme Court
• Parties: Joseph D. BROWN, Sr., et al. v. NEW AMSTERDAM CASUALTY COMPANY et al. Joseph D. BROWN, Jr., et al. v. NEW AMSTERDAM CASUALTY COMPANY et al.

Page 796

142 So.2d 796

243 La. 271

Joseph D. BROWN, Sr., et al. v.NEW AMSTERDAM CASUALTY COMPANY et al.

Joseph D. BROWN, Jr., et al. v.NEW AMSTERDAM CASUALTY COMPANY et al.

No. 46014.

Supreme Court of Louisiana.

June 29, 1962.

Stafford & Pitts, Alexandria, for relators.

Hudson, Potts & Bernstein, Monroe, amicus curiae.

Watson, Williams & Brittain, Natchitoches, Bryan J. Lehmann, Jr., Norco, Gist, Murchison & Gist, Howard B. Gist, Jr., Alexandria, for respondents.

HAMITER, Justice.

These two consolidated tort actions arose out of a vehicular collision occurring in Natchitoches Parish on September 1, 1960 between an automobile driven by Joseph D. Brown, Sr., one of the plaintiffs, and a truck operated by Eugene Jones that was owned by his employer, Everett W. Manning, and was insured by the New Amsterdam Casualty Company.Passengers in the automobile at the time of the accident were Brown, Sr.'s, wife, his two minor children, and a minor child of Joseph D. Brown, Jr. Allegedly, all of them sustained injuries as a result of the collision, those of Mrs. Brown ultimately causing her death.

The instant suits were instituted subsequent to January 1, 1961 by Brown, Sr. and Brown, Jr., against Manning, his insurer (the New Amsterdam Casualty Company), and others, to recover damages for themselves and their minor children.

Manning and his insurer, after answering, filed third party petitions against Hartford Accident and Indemnity Company, the automobile liability insurer of Joseph D. Brown, Sr., alleging that the latter was a joint tort feasor and as such he and his insurer were liable for their proportionate share of whatever damages might be assessed.

To the third party petitions Hartford tendered exceptions of no right and no cause of action.These were sustained by the district court and such petitions dismissed.

The rulings were affirmed by the Court of Appeal(136 So.2d 283 and 286), and we granted certiorari at the instance of Manning and his insurer.

Initially, Revised Civil Code Article 2103 recited: 'The obligation contracted in solido towards the creditor, is of right divided amongst the debtors, who, amongst themselves, are liable each only for his part and portion.'And Revised Civil Code Article 2324 stated and now states: 'He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.'

By Act 30 of 1960, which became effective January 1, 1961, the mentioned Article 2103 was amended and re-enacted so as to provide:

'When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them.As between the solidary debtors, each is liable only for his virile portion of the obligation.

'A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.'

On these quoted provisions of Article 2103, as amended by the 1960statute, the controverted third party petitions herein are based.

In affirming the dismissal of the third party petitions the Court of Appeal first recognized that under the jurisprudence of this state as it existed prior to the 1960amendment to Article 2103 an alleged tort feasor could not enforce contribution from a person whom he asserted to be a joint wrongdoer unless and until both had been cast in solido by a judgment secured by the injured party.It then approved the contention of the exceptors that the amendment of 1960 constituted a substantive,...