Harvey v. Travelers Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before CULPEPPER, FRUGE and HOOD; HOOD
• Citation: Harvey v. Travelers Ins. Co., 163 So.2d 915 (La. App. 1964)
• Decision Date: 13 May 1964
• Docket Number: No. 1114,1114
• Parties: Woodson HARVEY et al., Plaintiffs and Appellees, v. The TRAVELERS INSURANCE COMPANY et al., Defendants and Appellants.

Page 915

163 So.2d 915

Woodson HARVEY et al., Plaintiffs and Appellees, v. The TRAVELERS INSURANCE COMPANY et al., Defendants and Appellants.

No. 1114.

Court of Appeal of Louisiana, Third Circuit.

May 13, 1964.

Rehearing Denied May 27, 1964.

Stafford & Pitts, by Joohn L. Pitts, Alexandria, for defendants-appellants.

Gravel, Sheffield & Fuhrer, by Leonard Fuhrer, Alexandria, for plaintiff-appellee.

T. C. McLure, Jr., Alexandria, for defendant-third-party plaintiff-appellee.

Long & Sleeth, by Lewis R. Sleeth, Jena, for third-party defendant-appellee.

Before CULPEPPER, FRUGE and HOOD, Judges.

HOOD, Judge.

This is an action to recover damages for injuries sustained by Joseph Woodson Harvey in an automobile accident which occurred on a public highway in Rapides Parish on November 24, 1961. The suit was instituted by the said Joseph Woodson Harvey, who was a minor when the accident occurred but has now reached the age of majority, and by his father, Woodson Harvey. The injured plaintiff claims damages in the sum of $205,750.00 for his injuries, and his father seeks to recover $4,846.67 for medical expenses incurred by him while his son was still a minor.

Plaintiffs allege that at the time the accident occurred young Harvey was riding as a guest passenger in an automobile being driven by James C. Downs, that the Downs car collided with the rear of a truck owned by Davidson Sash & Door Company, Inc., and that the accident was caused by the negligence of the drivers of both vehicles. This suit was instituted against Lumbermens Mutual Casualty Company, as the public liability insurer of the driver of the Downs car, and against Davidson Sash & Door Company and its public liability insurer, Travelers Insurance Company.

Lumbermens filed an answer denying any negligence on the part of its insured, Downs, alleging that another car driven by George E. Vercher was also involved, and further alleging that the accident was caused solely by the negligence of Vercher and the driver of the Davidson truck. Lumbermens also filed a third party action against Vercher, Davidson and Travelers, demanding that in the event plaintiffs recover from Lumbermens judgment be rendered in favor of the latter and against said third party defendants for 'a pro-rata amount of any recovery allowed to the original plaintiffs.'

After this answer and third party action had been filed, Lumbermeans (and its insured) entered into a compromise agreement with the original plaintiffs, the Harveys, under the terms of which Lumbermens paid plaintiffs the sum of $16,500.00 in full settlement of all claims which plaintiffs have or may have against Lumbermens or its insured for damages as a result of that accident. The written compromise agreement specifically stipulates that: (1) the payees reserve all rights and causes of action which they may have against other persons as a result of the accident, and particularly against Davidson, the driver of the Davidson truck, and Travelers; (2) the payees must dismiss this suit against Lumbermens; and (3) the payees agree to indemnify the payors and to hold them harmless from further damages, and to reimburse said payors for any other claims which they may be condemned by judgment to pay as a result of said accident and the further prosecution of plaintiffs' claim against other parties. After that compromise agreement was entered into, and pursuant to its provisions, plaintiffs dismissed this suit as to Lumbermens.

After the suit had been dismissed as to that defendant, Davidson and Travelers, who had previously filed an answer, filed and amended answer and a third party demand against Lumbermens. In this amended pleading these defendants allege that the compromise agreement entered into between plaintiffs and Lumbermens did not have the effect of depriving Davidson and Travelers of their right to contribution from Lumbermens in the event Davidson and Travelers are held liable to the plaintiffs. They demand, therefore, that Lumbermens be brought back into this action in order that its solidary liability may be judicially determined, and that in the event either Davidson or Travelers should be held liable to plaintiffs for any amount, 'its liability be limited to one-half, or its prorata part, of any award to the plaintiffs, or that judgment be rendered in favor of these defendants over and against the said Lumbermens Mutual Casualty Company for one-half of any award to plaintiffs herein.'

In response to this third party petition Lumbermens filed an exception of no cause of action, a plea of res judicata, a plea of compromise and a motion for summary judgment. After hearing, the trial court rendered judgment in favor of Lumbermens, and against Davidson and Travelers, granting the motion for summary judgment, rejecting the third party demands of Davidson and Travelers against Lumbermens, and dismissing the third party action against Lumbermens with prejudice. Davidson and Traverlers have appealed from that judgment.

Lumbermens contends that the compromise settlement entered into between it and plaintiffs has the effect of relieving Lumbermens completely from any futher liability to plaintiffs, and that it also relieves Lumbermens from the obligation to contribute to any other joint tort-feasor, particularly since plaintiffs agreed to indemnify or reimburse Lumbermens for any other damages which it may be required to pay as a result of the accident. It contends that in view of that settlement Lumbermens cannot be brought back into the suit, that Davidson and Travelers have no cause of action against Lumbermens for contribution, and accordingly, that the third party demand filed by Davidson and Travelers must be dismissed.

Davidson and Travelers, on the other hand, contend that their right to contribution against Lumbermens is a substantive right, and that they cannot be deprived of that right by a compromise settlement or agreement to which Davidson and Travelers were not parties. They contend either (1) that they are entitled to credit for the amount actually paid by Lumbermens, and to recover contribution from the latter for one-half of the amount which they may be condemned to pay to plaintiffs, or (2) that they are entitled to have the plaintiffs' claim reduced by one-half because of the remission by plaintiffs of that portion of the solidary obligation. In any event, however, they contend that Lumbermens must remain as a party to the suit in order that it may be judicially determined whether the driver of the Downs car is a joint tort-feasor, and thus is solidarily liable with Davidson and Travelers to plaintiffs.

The primary issue presented here is whether Lumbermens, because of the compromise agreement entered into between it and plaintiffs, is entitled to summary judgment dismissing the third party action instituted against it by Davidson and Travelers. In order to resolve that issue, however, it is necessary to consider and determine the effect which the compromise agreement had upon the plaintiffs' claim against other alleged joint tort-feasors, and particularly whether it deprives another joint tort-feasor of his right to contribution from the one who has been released. There is no dispute as to the facts, and the legal issue to be determined is res nova in Louisiana.

It is the settled jurisprudence of this State that where the negligence of two persons combines to produce injury to a third, the parties at fault are joint tort-feasors and, as such, are liable In solido to the injured plaintiff. LSA-C.C. Articles 2103 and 2324; Peats v. Martin, La.App. 2 Cir., 133 So.2d 920; Norton v. Argonaut Insurance Company, La.App. 1 Cir., 144 So.2d 249; Quatray v. Wicker 178 La. 289, 151 So.2d 208; Cust v. Item Co., 200 La. 515, 8 So.2d 361; and Reid v. Lowden, 192 La. 811, 189 So. 286.

Article 2103 of the Louisiana Civil Code, as amended by Act 30 of 1960, provides:

'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 admist or denies liability on the obligation sued on by the plaintiff. (As amended Acts 1960, No. 30, § 1).'

Prior to the 1960 amendment of Civil Code Article 2103, it was established that one tort-feasor who had been condemned by judgment and who paid that judgment had no right to enforce contribution from other tort-feasors against whom a judgment had Not been rendered. Sincer v. Heirs of Bell, 47 La.Ann. 1548, 18 So. 755. Before the amendment of that article, contribution between joint tort-feasors could be enforced only when one tort-feasor was compelled to pay damages which had been awarded by judicial decree against both, in solido. Winford v. Bullock, 210 La. 301, 26 So.2d 822; Aetna Life Ins. Co. v. De Jean, 185 La. 1074, 171 So. 450; Quatray v. Wicker, supra; Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539; Sincer v. Bell, supra; May v. Cooperative Cab. Co., La.App.Orl., 52 So.2d 74; Kahn v. Urania Lumber Company, La.App. 2 Cir., 103 So.2d 476; De Cuers v. Crane Co., La.App.Orl., 40 So.2d 61; Spanja v. Thibodaux Boiler Works, La.App.Orl., 37 So.2d 615; Toye Bros. Yellow Cab Co. v. V--8 Cab Co., La.App.Orl., 18 So.2d 514.

It also was settled before R.C.C. Article 2103 was amended that where the claimant in a tort action entered into a compromise settlement with one joint tort-feasor, reserving his rights...