Gray v. Hartford Accident & Indemnity Co.

• Decision Date: 02 February 1940
• Docket Number: No. 190.,190.
• Parties: GRAY et al. v. HARTFORD ACCIDENT & INDEMNITY CO. (ROBISON et al., Third-Party Defendants).
• Court: U.S. District Court — Western District of Louisiana

31 F. Supp. 299

GRAY et al. v. HARTFORD ACCIDENT & INDEMNITY CO. (ROBISON et al., Third-Party Defendants).

No. 190.

District Court, W. D. Louisiana, Shreveport Division.

February 2, 1940.

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Chandler & Chandler and H. M. Holder, all of Shreveport, La., for plaintiffs.

Dimick & Hamilton, of Shreveport, La., for defendant and third-party plaintiff.

Hollingsworth B. Barret, of Shreveport, La., for third-party defendants.

PORTERIE, District Judge.

On September 10, 1938, an automobile being driven and owned by Mr. J. A. Robison, with whom were riding Mrs. J. A. Robison and Mrs. Octa Whitfield Gray, collided with a truck of the Rothschild Boiler Works, being driven by one of its employees, with whom no one was riding. Mr. J. A. Robison carried public liability insurance with the Aetna Insurance Company and the Rothschild Boiler Works carried protection with the Hartford Accident and Indemnity Company.

Suit was filed by Mrs. Robison and Mrs. Gray against the Hartford Accident and Indemnity Company in the First District Court of Louisiana. The Hartford Company removed the case to the Federal court — diversity of citizenship. Then the Hartford Company filed a third-party complaint, under Rule 14, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, alleging that "the accident was caused solely by the negligence of J. A. Robison, who was the owner and operator of the car in which plaintiffs were riding, and who negligently drove the said motor vehicle into the automobile truck of B. A. Rothschild, defendant's insured."; also, alleging further "In the alternative, if the said accident was not caused solely by the negligence of J. A. Robison, the negligence of the said J. A. Robison was a proximate cause of the said accident and he was and is a joint tort feasor."; and finally alleging further "The said plaintiffs have a like claim against the Aetna Casualty and Surety Company under the terms of its policy issued to Robison and by virtue of the laws of the State of Louisiana, and particularly Act 253 of 1918 and Act 55 of 1930, which accord to an injured person a right of action against a liability insurer."; and, consequently, praying to have Mr. Robison and the Aetna Casualty and Surety Company made third-party defendants.

Then, Mrs. Robison and Mrs. Gray, original plaintiffs, jointly moved for an order revoking and rescinding the previous order of the court bringing third-party defendants into the action because (1) there is no authority for such a procedure, (2) if there be authority for such procedure, defendant is not entitled to employ it, for the reason that under the law of Louisiana, there is no right of contribution among joint tort-feasors, and (3) an allowance of such a pleading retards unduly the main action of plaintiffs.

There was a hearing, oral arguments were had and were followed by briefs.

The dominant portion of Rule 14 is as follows:

"Rule 14. Third-Party Practice

"(a) When Defendant May Bring in Third Party. Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. * * *" (Italics supplied)

We quote the remaining portion of the rule to show its dragnet provisions, clearly indicative of the purpose of the writers of the rule to encompass any and all diversified ramifications growing out of or connected with any cause of action: "* * * If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses as provided in Rule 12 and his counter-claims and cross-claims against the plaintiff, the third-party plaintiff, or any other party as provided in Rule 13. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff. The plaintiff may amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant."

The italicized part of the first quoted portion of the rule: "who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him" gives no difficulty as to its meaning. It is quite obvious that the original defendant, Hartford Company, may convert itself into what the rule denominates the third-party plaintiff and by motion, authorized by the court, even though ex parte, make the two new parties, Mr. J. A. Robison and the Aetna Insurance Company, what the rule designates as third-party defendants. We must remember that the allegation of the Hartford Accident and Indemnity Company in its third-party complaint motion is to the effect that these two new parties brought into the suit are "liable to * * * the plaintiff for all * * * of the plaintiff's claim against him." We, therefore, overrule the motion on its first contention that there is "no authority for such a procedure."

The court, however, must go further and consider the very learned point made by Mrs. Robison and Mrs. Gray in their motion to revoke the order of the court. The argument is that Rule 14 is essentially procedural in character and it should not be used, as is sought in the instant case, under the guise of procedural relief to change the substantive law of the state of Louisiana. The substantive law asserted is that there is no right of contribution among joint tort-feasors in Louisiana, citing Quatray v. Wicker, 1933, 178 La. 289, 151 So. 208, 210. We take exception unqualifiedly; the substantive law is just to the contrary; and the case, we believe, holds with our view.

In the instant case, the result to be declared under Rule 14, if the third-party defendants prove upon trial to be joint tort-feasors with the defendant, will be to condemn them in the judgment with the defendant, in solido.

We subscribe to the following quotation taken from mover's brief and being from the Quatray case, to-wit: "Sincer v. Heirs of Bell 47 La.Ann. 1548, 18 So. 755, therefore, is authority for the proposition that one of two joint tort-feasors who has been judicially compelled to pay for the damages committed by them jointly has not a right of action against the other of the two joint tort-feasors who has not been judicially condemned to pay the damages. But Sincer v. Bell is not appropriate to a case where two joint tort-feasors have been judicially condemned, in solido, to pay damages, and one of them has paid the judgment and demands contribution. * * *" (Italics supplied by this court)

After reading the italicized passage above, it is clear that Sincer v. Heirs of Bell, 47 La.Ann. 1548, 18 So. 755, is not a case for mover. The sentence following the above quotation sustains this view (Quatray v. Wicker, 178 La. 289, 151 So. at page 210): "* * * Whether the doctrine of Sincer v. Bell can be reconciled with the rule in Louisiana that the liability of joint tort-feasors for damages is a solidary liability is a matter which does not concern us in the present case."

The main syllabus of the Sincer v. Bell case is a correct exposition of its legal content. We quote it here, making our own italicization of the part which, we think, weakens its legal meaning (47 La. Ann. 1548, 18 So. 755): "The liability arising from negligence constituting the offense or quasi offense is to the injured party, but creates no liability, one to the other, of those to whom the negligence is imputed. Hence, if one of the wrongdoers pays the resulting damage, he thereby acquires no right of action against the other; least of all, if he has settled with the injured party, and been discharged from all liability."

Moreover, and finally, the following language from the Quatray case qualifies definitely the holding of Sincer v. Bell, (178 La. 289, 151 So. at page 211): "* * * the necessary consequence is that the one of the joint tort-feasors who is compelled to pay the damages may demand contribution from the other or others. See, also, Baudry-Lacantinerie, Droit Civil (2d Ed.), vol. XII, p. 390, § 1305; Planoil et Ripert, Droit Civil, vol. 6, p. 930, § 687; Pothier on Obligations, vol. 1, p. 282; Evans' Translation, p. 245."

Here is what the Quatray case really says (178 La. 289, 151 So. at page 211): "We must bear in mind that, in Louisiana, the liability of joint tort-feasors for damages resulting from their concurrent negligence or wrongdoing is a solidary liability. The French commentators agree that the right to demand contribution, between or among joint tort-feasors, is a necessary consequence of the law which makes the liability of joint tort-feasors a solidary liability."

We make a literal translation of the concluding paragraph from Pothier, Traité des obligations I (nouvelle éd. 1821), Part II, Chapter III, § VI, "Of the actions which the solidary debtor who has paid without subrogation may have for himself against his co-debtors" — No. 282 at p. 272: "Our French practice * * * allows in this case an action to him who has paid the whole, against each one of his co-debtors, to claim from each his share. See Papon, 1. 24, t. 12, n. 4. This action is not born of the wrong committed together; * * * it is born of the payment which the one has made of a debt which was common to him with his co-debtors; and (it is born)...