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

• Decision Date: 29 May 1961
• Docket Number: Nos. 45480,45488,s. 45480
• Citation: Dumas v. U.S. Fidelity & Guaranty Co., 134 So.2d 45, 241 La. 1096 (La. 1961)
• Parties: John Stanley DUMAS v. UNITED STATES FIDELITY & GUARANTY COMPANY.
• Court: Louisiana Supreme Court

Page 45

134 So.2d 45

241 La. 1096

John Stanley DUMAS v.UNITED STATES FIDELITY & GUARANTY COMPANY.

Nos. 45480, 45488.

Supreme Court of Louisiana.

May 29, 1961.

On Rehearing Nov. 6, 1961.

Gravel, Sheffield & Fuhrer, Stafford & Pitts, Alexandria, for relators.

Deutsch, Kerrigan & Stiles, A. Morgan Brian, Jr., New Orleans, amicus curiae in support of defendant-relator.

J. B. Nachman, Alexandria, for plaintiff-respondent.

McCALEB, Justice.

This action, ex delicto, arises out of an intersectional collision which occurred in the city of Alexandria on December 15, 1956 when an automobile owned and operated by Mrs. Alice Peters Dumas ran through a red signal light at the corner of Jackson and Sixteenth Streets and collided with another car.As a result of the accident Mrs. Dumas' husband, John Stanley Dumas, who was riding as a guest passenger in her car, received personal injuries and he instituted this suit against his wife's liability carrier, United States Fidelity & Guaranty Company, to recover $200,000 damages.

The insurance company denied liability for the consequences of the accident but thereafter, on the date the case was set for hearing, its counsel admitted that, for the purpose of trial, its insured, Mrs. Dumas, was guilty of negligence and that the Company was therefore liable, within the limits of its policy, for whatever damages plaintiff sustained.Evidence relating to the nature and extent of the injuries was then heard and the case submitted for decision.Prior to judgment, however, the insurance company moved to reopen the matter for the hearing of additional evidence.This motion was granted but, before the evidence could be taken, Mr. Dumas died of an illness totally unrelated to the injuries he sustained in the accident.

In due course Mrs. Dumas, appearing as surviving spouse, Miss Leola Dumas, a daughter of Mr. Dumas by a former marriage, and G. E. Estes, Jr., the executor of the estate of Mr. Dumas, filed a joint motion requesting that they be substituted as partiesplaintiff and to continue prosecution of the case.

This motion was opposed by the insurance company.In its answer, it alleged that the cause and right of action exercised by Mrs. Dumas was a personal and nonheritable right which did not survive in favor of anyone.Further, in the alternative, it pleaded that, if it should be held that Mrs. Alice Dumas was her husband's survivor under Article 2315 of the Civil Code, she had no cause of action because the law would not countenance her recovery of damages for injuries caused by her own negligence.

Following a hearing on the issues presented on the motion, the district judge ruled that the executor alone was entitled to be substituted as partyplaintiff and judgment was rendered in the executor's favor and against the insurance company for damages totalling $12,996.99.The insurance company then appealed to the Court of Appeal, Third Circuit, from the adverse decision.Separate appeals were also prosecuted by the widow and major daughter, in order to preserve their rights to be substituted as partiesplaintiff in the event the appellate court should find that the executor was not the proper substituted party.

The Court of Appeal was of the opinion that the widow of Mr. Dumas was the legal survivor of his cause and right of action against the defendant insurer under Article 2315 of the Civil Code.Accordingly, it substituted Mrs. Dumas as the proper partyplaintiff and entered a decree in her favor for the same amount of damages awarded by the district court.SeeDumas v. United States Fidelity and Guaranty Co., 125 So.2d 12.When this decision became final, the major daughter and the executor of Mr. Dumas, as well as the defendant insurer, applied for certiorari.All applications were granted and the case has been argued and submitted for our decision.

Primarily, the insurance company stresses in this Court the stand it has taken throughout the proceedings, i.e., that an ex delicto action for damages, which has not been reduced to judgment, is a personal nonheritable right which abates upon the death of the plaintiff(Hubgh v. New Orleans & Carrollton Railroad Co., 6 La.Ann. 495) and that the right of action which survives in favor of certain designated persons, provided by Article 2315 of the Civil Code in case of death, extends only to cases in which the death is due to the wrongful act and not to a case like this, where the plaintiff dies from a cause admittedly unrelated to the accident.

The position of the major daughter and the executor is likewise founded on the theory advanced by them below, i.e., that the right of action of Mr. Dumas became a heritable right by reason of defendant insurer's judicial admission of liability to Mr. Dumas for the negligence of Mrs. Dumas, which admission or confession transformed the personal right to redress into a property right to which they succeeded by operation of law.Counsel declare that, moreover, our direct action statute, R.S. 22:655, as amended by Act 475 of 1956, now creates a substantive right in favor of the injured person, his survivors or heirs, in the nature of stipulation pour autrui which became heritable when liability was judicially confessed as in the case at bar.In addition, it is urged that, in view of Article 21 of the Code of Practice of 1870 and R.S. 13:3349(now supplanted by Article 428 of the Code of Civil Procedure which went into effect January 1, 1961) actions for personal injuries do not abate upon the death of the plaintiff from causes unrelated to the tort and that our ruling to the contrary in McConnell v. Webb, 226 La. 385, 76 So.2d 405 is incorrect and should be overruled.

In order to answer the respective contentions of the applicants, it becomes necessary to examine our general tort law (Article 2315 of the Civil Code) and those adjudications under it which may apply to the matter at hand.The pertinent provisions of Article 2315, as it read at the time the right and cause of action herein arose ¹ are as follows:

'Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; The right of this action shall survive in case of death in favor of the children * * * or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death.However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children.The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.'(Emphasis ours.)

Since Mr. Dumas was survived by a spouse, his major daughter is eliminated as a beneficiary by the plain provisions of the last sentence above quoted.Hence, her only basis for substitution as partyplaintiff would be in her status as heir if, as contended by her counsel, the decedent's right of action may be regarded as a property right.

However this contention, which was sustained by the district court in favor of the executor of the estate of Mr. Dumas, is not meritorious as the Court of Appeal properly deduced.Obviously, in view of the explicit provisions of the law, the rights of the heirs or the succession representative of the deceased injured party can only come into being if the right of the beneficiary designated by Article 2315 does not exist at the date of death--that is, when the decedent's Right of action has been reduced to judgment.Thus, it matters not whether the direct action statute, as amended by Act 475 of 1956, creates a substantive right in favor of the injured person which is heritable, or whether the admission of liability by the defendant for the consequences of Mrs. Dumas' wrong changed his personal nonheritable right into a heritable right--for assuming, without deciding, that these factors produced the consequences contended for by counsel for the executor and heir of Mr. Dumas, they could not divest Mrs. Dumas of her right as surviving spouse under Article 2315 as that right became vested in her at the time of her husband's death.

To what, then, did Mrs. Dumas succeed?Article 2315 provides the answer, for it declares in the plainest sort of language that the right, meaning the right vested in the injured party, 'of this action shall survive', meaning the action either that the injured party brought or was entitled to institute prior to his death.Therefore, since the right of action was still in existence at the time of Mr. Dumas' death, Mrs. Dumas, as his surviving spouse, became vested by operation of law with the exclusive right to pursue this action.It is only where the right of action of the decedent has been merged into a judgment that it loses its classification as a 'right of action' and becomes a property right which is inherited by the heirs.SeeCastelluccio v. Cloverland Dairy Products Co., 165 La. 606, 115 So. 796.

This analysis of the words of the statute refutes, we think, the contention of counsel for defendant insurer that, in order for the right of action to survive in favor of the beneficiaries designated therein, the injured party's death must be attributable to the tortious act.Indeed, we find nothing in the language of the statute or in our jurisprudence which lends any support to counsel's argument.² On the contrary, this Court has consistently held that the survivors mentioned in Article 2315 succeed, in case of death, to the right of action of the injured person to recover the damages he sustained as a consequence of a wrongful act, irrespective of whether his death had any relation to the injury or not, or whether suit had been filed prior to death.

The first case in which the point here...