Hidalgo v. Dupuy

• Decision Date: 15 June 1960
• Docket Number: No. 5050,5050
• Citation: 122 So.2d 639
• Parties: Edgar HIDALGO, Plaintiff-Appellee, v. Roy DUPUY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 639

122 So.2d 639

Edgar HIDALGO, Plaintiff-Appellee, v. Roy DUPUY, Defendant-Appellant.

No. 5050.

Court of Appeal of Louisiana, First Circuit.

June 15, 1960.

Rehearing Denied July 12, 1960.

Christovich & Kearney, New Orleans, for appellant.

Dubuisson & Dubuisson, Opelousas, for appellee.

Before TATE, MILLER, and PUTNAM, JJ.

TATE, Judge.

On November 3, 1950 the plaintiff Hidalgo was a passenger in an automobile which was involved in a collision with an opposite-bound truck owned and driven by the defendant Dupuy. Hidalgo seeks herein to recover the damages resulting from his personal injuries sustained in this accident. The plaintiff was awarded judgment in the amount of $45,691.50, as prayed for, and the defendant appeals.

As the trial court found, the preponderating evidence shows that, in attempting to pass a preceding westbound truck, Dupuy pulled out into his left lane at a time when the eastbound vehicle in which the plaintiff was riding was so close that the plaintiff's driver, who immediately applied his brakes, was unable to avoid colliding with a portion of the defendant's westbound truck which was improperly protruding into the plaintiff's vehicle's lane of traffic. The defendant Dupuy's negligence was thus the sole proximate cause of the accident. Noland v. Liberty Mut. Ins. Co., 232 La. 569, 94 So.2d 671; Guidry v. Crowther, La.App., 1 Cir., 96 So.2d 71; Crowther v. Fenstermaker, La.App., 1 Cir., 96 So.2d 91; Brock v. Southern Farm Bureau Cas. Ins. Co., La.App., 1 Cir., 94 So.2d 492.

The chief question posed by the defendant's appeal is his contention that the present suit was not timely filed and that plaintiff's action for damages has therefore prescribed. In addition, the defendant contends that the damages awarded are excessive and, further, that the trial court erred in awarding a greater loss of earnings than was alleged in the original petition, since the defendant was never served with nor cited to answer an amended and supplementing petition filed by the plaintiff which described these additional lost earnings. The defendant further has filed in this court a motion to remand these proceedings in order to take further evidence concerning the alleged loss of earnings.

I. Prescription.

The defendant's plea of prescription is based upon the circumstance that the accident occurred on November 3, 1950, whereas the present suit was not filed until April 12, 1954. It is thus urged that this tort action has prescribed, having been filed more than one year after the date of the injury. LSA-Civil Code Arts. 3536, 3537.

The plaintiff, however, relies upon the institution of a suit in the federal courts on November 2, 1951, one day before prescription had accrued, as an interruption of prescription. The sole defendant in that suit, filed in the United States District Court for the Western District of Louisiana, was the Fidelity and Casualty Company of New York, the defendant's liability insurer at the time of the accident. The federal courts dismissed this suit on the ground that a 'no action' clause of the policy (preventing a direct action against the insurer until a judgment had been obtained against the insured fixing the amount of the damages) was a valid defense to the suit, since the action has occurred in Alabama and since the Louisiana statute (LSA-R.S. 22:655) permitting such direct actions despite policy clauses to the contrary was by its terms expressly limited to actions upon accidents occurring in Louisiana. Hidalgo v. Fidelity & Cas. Co., 5 Cir., 1953, 205 F.2d 834, affirming D.C.W.D.La., 104 F.Supp. 230. Thus the present suit was brought within nine months of the date of the judgment finally dismissing the federal suit, so that the plaintiff's claim did not prescribe before the present suit was filed, if the filing of the federal suit interrupted prescription.

In our opinion, the trial court herein correctly overruled the defendant's plea of prescription.

The timely filing of the suit in federal court against the insurer prevented the accrual of prescription against that defendant. LSA-R.S. 9:5801 provides: 'The Filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts.' (Italics ours.)

(It is immaterial that service of citation upon the defendant insurer's agent was not made until November 8, 1951, five days after the prescriptive year, because actual service of citation, in addition to filing of the suit, is necessary to interrupt prescription only where the suit is filed in a court which does not have jurisdiction of the action. LSA-Civil Code Article 3518; Flowers v. Pugh, La.App., 1 Cir., 51 So.2d 136. Although there was a valid defense to the action filed in federal court, that court nevertheless had jurisdiction of the suit, see its opinion at Hidalgo v. Fidelity & Cas. Co., D.C., 104 F.Supp. 230; it was a court of competent jurisdiction within the meaning of LSA-R.S. 9:5801, having jurisdiction of the amount in dispute, of the defendant, and of the place where the action was brought, Code of Practice Articles 86, 87, see also Flowers v. Pugh, above-cited.)

Since the filing of the federal suit interrupted prescription against the defendant's insurer, it also interrupted prescription against the insured, the present defendant. 'A suit brought against one of the debtors In solido interrupts prescription with regard to all,' LSA-Civil Code Article 2097. See Sewell v. Newton, La.App. Orl., 152 So. 389.

Although the defendant contends that the insurer and its insured were not solidary obligors, so that suit against the one could not interrupt prescription against the other, we are constrained to disagree.

Under LSA-Civil Code Article 2091, 'There is an obligation In solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.' By the terms of its policy the defendant's insurer had agreed, subject to the limits and conditions of the policy, 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.' (Policy coverage A.) By the terms of the insuring agreement, both the insurer and its insured are obligated for the same debt (namely the insured's tort liability covered by the policy), and payment made by either of them satisfied the liability of the other, so that within the statutory definition they are solidary obligors for the payment of the damages for which the insured is legally liable within the coverage of the insurance policy.

Under the terms of the 'no action' clause ¹, a condition precedent to a direct action by the injured person against the insurer is the obtaining of a judgment against the insured to determine the amount of the damages for which the insurer will be obligated but, after obtaining such judgment, the insured person is thereafter entitled to recover directly from the insurer under the policy to the extent of its coverage. Although the obligation of the insurer to pay to the injured person the same damages for which the insured is cast is conditioned upon the injured person first obtaining judgment against the insured, the obligation of the insurer and the insured to the injured person is nevertheless solidary. For, as LSA-C.C. Art. 2092 provides: 'The obligation may be In solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other.'

While it is true that, as the defendant contends, a solidary obligation is not presumed and must be expressly stipulated, LSA-C.C. Art. 2093, it is likewise well settled that where two debtors are by contract each bound for the whole of the same debt, the legal effect of the intention of the parties as manifested by the language and the terms of the agreement is to create a solidary obligation, despite the failure of the parties to specifically characterize their obligation as 'in solido'. J. I. Case Threshing Machine Co. v. Bridger, 133 La. 754, 63 So. 319; Rusca & Cunningham v. Hammett, La.App. 2 Cir., 195 So. 642; E. George Rogers & Co. v. Black, La.App. 1 Cir.,155 So. 403; Dodd v. Lakeview Motors, Inc., La.App. 2 Cir., 149 So. 278; North British Mercantile Ins. Co. v. Patterson, 1 Cir., 5 La.App. 327. See also: Teutonia Nat. Bank v. Wagner, 33 La.Ann. 732; Jacobs v. Williams,12 Rob. 183; Mayor, etc. New Orleans v. Ripley, 5 La. 120, 25 Am.Dec. 175; 2 Planiol, Treatise on the Civil Law (LSLI Translation, 1959), Sections 736, 741. 'When several persons obligated themselves to the obligee by the terms In solido, or use any other expressions, which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation In solido on the part of the obligors,' LSA-C.C. Art. 2082.

The defendant-appellant contends that the reason that obligation of an insurer and its insured to pay damages is solidary is because the Direct Action Statute, LSA-R.S. 22:655, permits the injured person to sue the insurer directly as well as the insured, which reason is inapplicable under the present circumstances where the Direct Action Statute does not apply.

The cases relied upon by the appellant do not so hold. Offhand statements to such effect in Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373, and in Martin v. Mud Supply Co., La.App.Orl., 111 So.2d 375, were enunciated without...