Dumas v. U.S. Fidelity & Guaranty Co.

• Decision Date: 30 November 1960
• Docket Number: No. 131,131
• Citation: Dumas v. U.S. Fidelity & Guaranty Co., 125 So.2d 12 (La. App. 1960)
• Parties: John Stanley DUMAS, Plaintiff and Appellant-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant and Appellee-Appellant.
• Court: Court of Appeal of Louisiana

Page 12

125 So.2d 12

John Stanley DUMAS, Plaintiff and Appellant-Appellee, v.UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant and Appellee-Appellant.

No. 131.

Court of Appeal of Louisiana, Third Circuit.

Nov. 30, 1960.

Rehearing Denied Dec. 14, 1960.

Gravel, Sheffield & Fuhrer, by C. F. Gravel, Jr. and Leonard Fuhrer, Alexandria, forplaintiff-appellant-appellee.

Stafford & Pitts, by Grove Stafford, Sr., Alexandria, for defendant-appellee-appellant.

Before TATE, SAVOY and CULPEPPER, Judges.

CULPEPPER, Judge.

This is a suit for damages for personal injuries arising out of an automobile collision.On December 15, 1956, John Stanley Dumas, the original plaintiff, was injured while riding in a car driven by his wife.His worst injury was a badly broken ankle.

On November 21, 1957, Mr. Dumas filed this suit seeking damages from United States Fidelity and Guaranty Company, his wife's insurer.Dumas alleged in his petition that the accident was caused by the negligent driving of his wife.The defendant filed an answer denying any negligence on the part of Mrs. Dumas, but when the case was called for trial in November of 1958the defendant insurance company, at the outset, stipulated into the record that Mrs. Dumas was guilty of actionable negligence.The only evidence introduced into the record was with reference to the amount of damages to be allowed.

After the case was tried, and pending submission for decision, defendant filed a motion to reopen the evidence.Plaintiff objected but after hearing the Court granted the motion and the evidence was reopened for the purpose of receiving the additional evidence to be tendered by the defendant, and, in addition, certain evidence on behalf of plaintiff, which the Court determined had been erroneously ruled out during the original trial.

The case was then set for the taking of this additional evidence on October 1, 1959, but a few days before that date, Mr. Dumas died of an illness, totally unrelated to his injuries.His widow, a major daughter by a former marriage, and the executor of his estate filed a joint motion asking that all three be substituted as partiesplaintiff and be permitted to continue the prosecution of this suit.The defendant objected to the motion on the grounds that the entire cause of action had abated by the death of the plaintiff, and, in the alternative, in the event the court should determine that the widow alone is entitled to prosecute the action, that she is precluded from doing so because of her contributory negligence in causing the accident which resulted in injuries to her husband.This motion was apparently referred to the merits, the trial was completed and, in his written opinion, the District Judge ruled that the executor alone, and not the widow or daughter, was entitled to be substituted as a partyplaintiff.The lower court then signed a judgment awarding the executor $2,146.99 for medical expenses, $3,350 for loss of earnings, and $7,500 in general damages, or a total of $12,996.99.From this judgment the defendant has appealed.

The widow and major daughter have also appealed from the judgment of the District Court in order to preserve their rights to be substituted as partiesplaintiff in the event that the Court of Appeal should find that the executor cannot be substituted.The executor has answered the defendant's appeal, praying for an increase in the amount of the judgment.

The primary legal issue is whether this action abated on the death of Mr. Dumas, and, if not, then who is entitled to be substituted as the plaintiff--the executor or the widow or the major daughter.The first argument of the plaintiff is that the lower court was correct in ruling that the executor alone was entitled to prosecute this action to a conclusion.The Judge of the trial court, in a lengthy and well-reasoned opinion, pointed out the difficulty of reconciling the jurisprudence of our Supreme Court and our Courts of Appeal interpreting Code of Practice, Article 21, as amended, with reference to the abatement of actions, and LSA-C.C. Article 2315 concerning tort actions and the survival thereof.However, the trial judge did not find it necessary to resolve the perplexing legal problems created by this jurisprudence because he decided that when the defendant insurance company made a judicial confession of negligence this changed the nature of the pending suit from a tort claim for personal injuries to a suit on a property right.The opinion of the lower court reads in part, as follows:

'However, the question to be determined is simply whether or not Mr. Dumas was vested with a 'property right' at the time of his death.If he was, then someone is entitled to prosecute this suit to a conclusion and ascertain the amount or value of that property right.

'To the mind of this writer it appears entirely unreasonable to say that the decedent was not possessed of a 'property right' at the time of his death, when the defendant had during his lifetime judicially admitted that it was indebted to him.It was none the less a property right, even though the amount of the indebtedness remained to be judicially fixed.It would appear that after the judicial admission of liability was made, we were then dealing, not with a mere claim for personal injuries, etc., but simply with the amount of the judgment to be rendered in compensation for the injuries, etc.In this view, the plea of abatement can not stand, and the remaining question relates to which party or parties should be substituted in this proceeding.

'Inasmuch as the amount to be awarded herein belonged to the estate of Mr. Dumas, and since his estate is under administration, it follows that the proper party to be substituted herein is the administrator, the widow and daughter having only a residuary interest in the estate.Accordingly, the plea of contributory negligence against Mrs. Dumas should be overruled.'

No statutory or jurisprudential authority has been cited to us in support of this position.Plaintiff argues that under the provisions of Article 2291 of our LSA-Civil Code a judicial confession amounts to full proof against him who has made it and cannot be revoked unless made through an error in fact.Plaintiff points out that Article 2291 is found in that portion of our Civil Code dealing with conventional obligations and he urges that the judicial confession of negligence in this case changed the very nature thereof from one sounding in tort to one sounding in contract.Plaintiff then concludes that this being an action on a contract for the payment of money, it passes to the estate of the decedent just as any other heritable obligation under Article 2008 of the LSA-Civil Code.

It is our opinion that, in a tort action, a judicial confession of negligence does not create a property right in the plaintiff nor does it change the nature of the suit from one sounding in tort to one based on a conventional obligation.We are aware, as counsel for the plaintiff has pointed out, that LSA-Civil Code, Article 2291 dealing with judicial confessions is found in the Title dealing with conventional obligations, but we note that it is placed by the redactors of the Code in Chapter 6, which deals with the Proof of obligations.Article 2291 reads, as follows:

'The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.

'It amounts to full proof against him who has made it.

'It can not be divided against him.

'It can not be revoked, unless it be proved to have been made through an error in fact.

'It can not be revoked on a pretense of an error in law.'

Under the provisions of Article 2291 quoted above, the principal effect of a judicial confession is that it amounts to full proof against him who has made it and, therefore, relieves his adversary of the necessity of introducing evidence as to the facts which have been admitted.In this case the only fact which defendant judicially confessed was that Mrs. Dumas was guilty of negligence proximately causing the accident.This relieved the plaintiff of introducing any evidence as to negligence.However, the defendant did not confess that it was indebted to the plaintiff in any amount whatsoever.The plaintiff still had to introduce evidence and prove by a preponderance thereof that he had been damaged.It is, therefore, our conclusion that, by defendant's judicial confession of negligence alone, no property right was vested in the plaintiff and the nature of the case was not changed from a tort claim for personal injuries to a suit to enforce a conventional obligation.

Plaintiff argues next that by virtue of our 'direct action statute'.LSA-R.S. 22:655, the defendant's judicial confession of negligence creates a property or contractual right which is heritable under our law.Plaintiff cites the case of West v. Monroe Bakery, Inc., 1950, 217 La. 189, 46 So.2d 122, which holds that an injured party acquired 'substantial rights' against the liability insurer of the tort feasor, which became 'vested' at the moment of the injury.Plaintiff argues that the effect of our direct action statute is to make a liability insurance contract one containing a stipulation pour autrui, or contract for the benefit of third parties.This argument is without merit.The case of West v. Monroe Bakery, Inc., supra, simply holds that Act 55 of 1930, the direct action statute, expresses the public policy of this state that liability insurance policies are not issued primarily for the protection of the insured but for the protection of the traveling public.Therefore, an injured third person does not lose his cause of action under the policy for the breaching of an agreement by the insured with the insurer after the accident has occurred.This principle is well established in our law but does no more than protect the injured person's right or cause of action for damages.It does not grant him a heritable...