Hoffpauir v. Kansas City Southern R. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: HOOD
• Citation: Hoffpauir v. Kansas City Southern R. Co., 219 So.2d 29 (La. App. 1969)
• Decision Date: 14 February 1969
• Docket Number: No. 2582,2582
• Parties: Everett L. HOFFPAUIR, Sr., and Vernon H. Bean, Jr., Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILROAD COMPANY, Defendant-Appellant, and State Farm Mutual Automobile Insurance Company, Defendant-Appellee .

Page 29

219 So.2d 29

Everett L. HOFFPAUIR, Sr., and Vernon H. Bean, Jr. Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILROAD COMPANY, Defendant-Appellant and State Farm Mutual Automobile Insurance Company, Defendant-Appellee .

No. 2582.

Court of Appeal of Louisiana, Third Circuit.

Feb. 14, 1969.

Drewett, Jacques & Short, by J. Clem Drewett, Lake Charles, for plaintiffs-appellants.

Scofield, Cox & Bergstedt, by James J. Cox, Lake Charles, Stockwell, St. Dizier, Sievert & Viccellio, by Robert W. Clements, Lake Charles, for defendant-appellee.

Before SAVOY, HOOD and CULPEPPER, JJ.

HOOD, Judge.

This is an action for damages for personal injuries allegedly sustained by plaintiffs as the result of an automobile-train collision. This suit was instituted by Everett L. Hoffpauir, Sr., and Vernon H. Bean, Jr., against Kansas City Southern Railroad Company and State Farm Mutual Automobile Insurance Company, the latter being the liability insurer of Vernon Davis, the driver of the automobile in which plaintiffs were riding when the accident occurred. Kansas City Southern filed a third party demand against Vernon Davis and State Farm.

The case was tried by jury, with the result that a special verdict was rendered finding that Vernon Davis was negligent, that Kansas City Southern was free from negligence, that plaintiffs were free from contributory negligence, and that each plaintiff sustained damages in the amount of $10,000.00. State Farm, as the insurer of Davis, had previously paid sums of money to plaintiffs and another claimant, and credit was allowed for these payments in determining the extent of the liability of State Farm under the policy which it had issued to Davis. Judgment then was rendered by the trial court in favor of each plaintiff, and against State Farm, for the principal sum of $9167.28. Plaintiffs' demands against Kansas City Southern were rejected, as were the third party demands of Kansas City against State Farm and Davis.

All parties appealed. State Farm, however, did not file an appeal bond and it thus has abandoned its appeal. The other parties have timely perfected the appeals which were taken by them.

Plaintiffs, in their joint petition for appeal, prayed for an appeal 'only against The Kansas City Southern Railroad Company,' and the order granting that appeal, dated July 5, 1968, specified that it was 'from the judgment rendered against plaintiffs in favor of The Kansas City Southern Railroad Company,' Although plaintiffs obviously intended to appeal only from that portion of the judgment which rejected their demands against the railway company, they nevertheless argue on this appeal that the judgment should be amended by substantially increasing the awards, and by casting both defendants, State Farm and Kansas City Southern, in solido, for the damages sustained by them.

Kansas City Southern limited its appeal to that portion of the judgment which rejects its third party demand against State Farm and Davis, and only then in the event the judgment of the trial court is amended or reversed to hold Kansas City Southern liable for damages.

The accident occurred on July 6, 1967, when the Davis automobile collided with a locomotive owned and operated by Kansas City Southern. The automobile was traveling east and the locomotive was traveling north as they approached and reached the crossing where the collision occurred. Plaintiffs allege and contend that the accident was caused by the joint negligence of Davis and Kansas City Southern, through its employees, and in their petition they set out the specific acts of negligence which they charge to each of said parties. As we have already noted, the jury determined that Davis was negligent and that Kansas City Southern was free from negligence.

Three days after an appeal was taken by plaintiffs, State Farm paid to said plaintiffs the full amount of the judgment which had been rendered against it, including principal, interest and costs. In consideration of that payment, each of said plaintiffs by a separate authentic act executed a 'Satisfaction of Judgment' or release, dated July 8, 1968, formally releasing State Farm and Vernon Davis from any further claims arising out of the alleged accident. Neither of these releases contains a reservation of any rights or claims which the plaintiff who executed it may have against any other party. The pertinent portion of the release executed by plaintiff Hoffpauir reads as follows:

'Claimant, Everett Hoffpauir, Sr. further declares that for the aforementioned payment to him by State Farm Mutual Automobile Insurance Company, he does hereby...