Edwards v. Royal Indemnity Co

• Decision Date: 04 March 1935
• Docket Number: 33179
• Citation: 182 La. 171,161 So. 191
• Court: Louisiana Supreme Court
• Parties: EDWARDS v. ROYAL INDEMNITY CO

161 So. 191

182 La. 171

EDWARDS v. ROYAL INDEMNITY CO

No. 33179

Supreme Court of Louisiana

March 4, 1935

Rehearing Denied April 29, 1935

Judgment annulled and set aside, exceptions of no right or cause of action overruled, and case remanded to trial court.

A Sidney Burns, of Lake Charles, and Allen B. Pierson, of Ponchatoula, for applicant.

Rownd &amp Warner, of Hammond, and Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for respondent Royal Indemnity Co.

HIGGINS Justice. BRUNOT and ODOM, JJ., dissent.

OPINION

HIGGINS, Justice.

This is a suit by a guest against an insurance liability carrier, under the provisions of Act No. 55 of 1930, to recover damages for personal injuries alleged to have been sustained as a result of the negligence of the assured.

The trial court sustained an exception of no right or cause of action, and dismissed the suit. The Court of Appeal affirmed the judgment on the ground that, as the assured was the husband of the plaintiff and she was without any right, under articles 2382, 2391, and 2446 of the Civil Code, and article 105 of the Code of Practice, to sue him in a tort action, the insurer, under the express provisions of the last paragraph of Act No. 55 of 1930, had a right to interpose the same defense. 155 So. 472.

Plaintiff's application for a writ of certiorari was granted by this court, and, in response to the writ, the record has been forwarded here. The case is now before us for review.

Plaintiff, Mrs. W. Ridgley Edwards, Jr., nee Carmen F. Palmer, while riding as a guest in Mr. Edwards' automobile, was injured in an accident on June 6, 1933, on the Hammond-Baton Rouge Highway, through the alleged negligent operation of the car by Mr. Edwards. At that time, these parties were engaged to be married. On June 10, 1933, Miss Palmer filed a suit for damages for personal injury against Mr. Edwards. On June 11, 1933, they were married. The trial court dismissed the suit, sustaining the exceptions of no right or cause of action on the ground that the wife could not institute the suit against her husband. The Court of Appeal affirmed the judgment ( Palmer v. Edwards, 155 So. 483, Id., 156 So. 781), and this court refused to grant writs which were applied for by the plaintiff.

While the first case was pending on appeal, Mrs. Edwards filed the instant suit against the insurance company, setting forth the same grounds of negligence alleged in the first suit, but further alleging that she had a direct right of action against the insurer alone, under the provisions of Act No. 55 of 1930.

The relevant part of that statute reads as follows:

"* * * Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido.

"Provided that nothing contained in this act shall be construed to affect the provisions of the policy contract if the same are not in violation of the laws of this State.

"It being the intent of this act that any action brought hereunder shall be subject to all of the lawful conditions of the policy contract and the defenses which could be urged by the insurer to a direct action brought by the insured; provided the term and conditions of such policy contract are not in violation of the laws of this State."

It will be noted that the last paragraph of the statute does not provide that the insurer may plead such defenses as the assured may plead against a claimant for damages, but clearly states that such action shall be subject to such defenses as could be urged by the insurer to a direct action brought by the assured. In short, if the insured pays a claim to a third person whom he injured, the insurance company would have the right to refuse to reimburse the insured, in the event the insured paid the claimant when there was no liability. For instance, if the insured were free from fault or if the claimant were guilty of contributory negligence, the insurer could resist the insured's claim for reimbursement.

Can it be said that the Legislature intended to include defenses which are purely personal between the insured and the injured party, or did it mean to confine the defenses to those which were necessarily connected with or grew out of the accident, or arose from the lawful terms and conditions of the policy?

There can be no doubt that the plea of coverture is personal to the wife and is wholly unrelated to the provisions of the policy and the alleged negligent injury. In fact, in the instant case, the plaintiff married the insured after the accident occurred.

Articles 3036, 3060, and 2098 of the Revised Civil Code read as follows:

Article 3036. "Suretyship can only be given for the performance of valid contracts. A man may, however, become surety for an obligation of which the principal debtor might get a discharge by an exception merely personal to him; such as that of being a minor, or a married woman."

Article 3060. "The surety may oppose to the creditor all the exceptions belonging to the principal debtor, and which are inherent to the debt; but he can not oppose exceptions which are personal to the debtor."

Article 2098. "A codebtor in solido, being sued by the creditor, may plead all the exceptions resulting from the nature of the obligation, and all such as are personal to himself, as well as such as are common to all the codebtors.

"He can not plead such exceptions as are merely personal to some of the other codebtors."

In the case of Kennedy v. Bossiere, 16 La.Ann. 445, it was held that a plea of coverture is personal to the wife, and the surety is not entitled to plead such a defense.

In the case of Federal Schools, Inc., v. Kuntz, 16 La.App. 289, 134 So. 118, it was held that a guarantor of full age is not entitled to plead, as a defense, the minority of the principal debtor, because such a defense was a personal one.

Could it be said in the instant case, if the insured were a creditor of the injured party to the extent of $ 5,000, that the insurance company could interpose the defense of set-off to the present action? The obvious answer is no, because that would be a personal matter between the plaintiff and the insured, wholly unrelated or in any way connected with or growing out of the provisions of the policy and the alleged tortious acts of the insured.

Let us suppose, in the instant case, that the insured had been a minor twenty years of age, or an interdict. No action could have been maintained against him, but, certainly, the injured party could sue the insurance company which could not plead the minority or interdiction of the insured as a defense.

Let us assume another case. A wife is riding as a guest in her husband's automobile. She is injured in an intersectional collision with another car, due to the joint and concurrent negligence of her husband, who was driving the car in which she was riding, and the owner and driver of the other automobile. Under the law, she could not bring a suit for damages for personal injuries against her husband. Palmer v. Edwards, supra; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A. L. R. 1482.

If she sued the owner of the second automobile and his insurance carrier in solido, under Act No. 55 of 1930, the defendants could not plead the contributory negligence of her husband in bar to her claim for damages for personal injuries. Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A. L. R. 148. Since the defendants would not have the right to plead the contributory negligence of the husband as a defense against the wife's claim for damages, it would seem to follow logically that the defendants could not urge the plea of coverture against her, simply because her husband was, under the law, a joint tort-feasor, and therefore liable in solido with them. Article 2098, R. C. C. Yet, the husband, as one of the joint tort-feasors and, as such, liable in solido, would have a good personal defense against his wife, in the event she sued him. Palmer v. Edwards, supra.

It will be noted that Act No. 55 of 1930 has no repealing clause, and, therefore, cannot be said to repeal in any way article 2098, R. C. C. Under the express provisions of Act No. 55 of 1930, the insurance company is liable in solido to the claimant. This article provides that a codebtor in solido, when sued by the creditor, may plead all exceptions resulting from the nature of the obligation. The last sentence of the article expressly provides that an in solido debtor cannot plead such exceptions as are merely personal to some of the other codebtors in solido.

It appears that the theory of the articles of the Civil Code and Code of Practice, which prohibit the wife from suing her husband during marriage, except for divorce, separation, etc., is that litigation between them would tend to promote domestic troubles and unhappiness, as well as confusion in the finances of the family group. But these reasons were entirely eliminated from consideration when the Legislature created a direct right of action in favor of the claimant against the insurance company alone.

An analogous situation was presented in the case of Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 912, 71 A. L. R 1055, where a minor son, who was working for his father and was injured, sued his father and his liability...