Hudson v. Union Indemnity Company

• Decision Date: 04 December 1928
• Docket Number: 373
• Citation: 9 La.App. 257,119 So. 462
• Court: Court of Appeal of Louisiana — District of US
• Parties: HUDSON ET AL. v. UNION INDEMNITY COMPANY

119 So. 462

9 La.App. 257

HUDSON ET AL. v. UNION INDEMNITY COMPANY

No. 373

Court of Appeals of Louisiana, First Circuit

December 4, 1928

Appeal from the Parish of Jefferson Davis. Hon. Thomas F. Porter Judge.

Action by Mrs. Mary Elizabeth Hudson et al. against Union Indemnity Company.

There was judgment for defendant and plaintiffs appealed.

Judgment affirmed.

T Arthur Edwards, of Lake Charles, attorney for plaintiffs appellants.

J. C Henriques, of New Orleans, and Frank T. Doyle, of New Orleans, attorneys for defendant, appellee.

OPINION

MOUTON, J.

Mrs. James A. Hudson recovered judgment in 1927 against the Louisiana Electric Company, individually, and for her minors, for negligence resulting in the death of her husband, James A. Hudson. Her judgment was for fifteen thousand dollars ($ 15,000.00), which was subsequently affirmed by this Court.

When he was killed, James A. Hudson was in the service of the city of Jennings, which carried liability insurance for Hudson, as one of its employees, in the Union Indemnity Company, defendant herein. At the time this judgment was rendered the defendant insurance company had paid compensation to Mrs. Hudson and her minor children in the sum of one thousand four hundred and fifty dollars ($ 1450.00), and in the same judgment it was decreed that the defendant company which had intervened in the case have judgment against the Louisiana Electric Company for said amount, and which was paid to defendant.

During the interval between the date of the appeal, and the affirmance of the judgment by this Court, the sum of nine hundred and eighteen 88/100 dollars ($ 918.88), as further compensation, was deposited in the registry of the Court by defendant to be paid Mrs. Hudson and her minors, or returned to the defendant company, as the Court might determine.

Plaintiffs allege that the total liability of defendant under its insurance contract to them, dependents of James A. Hudson, amounts to six thousand seven hundred and fifty dollars ($ 6,750.00), upon which it owes a balance of five thousand two hundred ninety-nine 50/100 dollars ($ 5,299.50), and prays for a decree for nine hundred eighteen 88/100 dollars ($ 918.88), the sum deposited with the Court as aforesaid, and that this sum be credited on the five thousand two hundred ninety-nine 50/100 dollars ($ 5,299.50).

Plaintiffs further allege, in the alternative, that they expended forty per cent (40%) of the amount sued for in attorney's fees, and one hundred six 25/100 dollars ($ 106.25) for briefs in the cause, and from which after deducting the sum of one thousand four hundred and fifty dollars ($ 1450.00), turned over to the defendant company under its claim in intervention, less the nine hundred eighteen 88/100 dollars ($ 918.88), deposited in escrow, leaves a balance of five thousand four hundred sixty-four 65/100 dollars ($ 5,464.65), for which defendant is liable in the proportion of one-half, that is, for the sum of two thousand seven hundred thirty-two 32/100 dollars ($ 2,732.32).

In a second plea and in the alternative, plaintiffs ask in the event the Court should find that the foregoing sum claimed is not equitable and commensurate with the results obtained, that it decrees such sum as it may consider a fair compensation for the benefits derived by defendant from the acts and deeds of petitioners.

The foregoing is an abbreviated statement of facts contained in the petition and embodies the essential averments upon which plaintiffs base their claim for relief, under the prayer of the demand which is in accordance with the facts alleged.

In their petition plaintiffs allege specifically that they sued the Louisiana Electric Company, a third person, in an independent action at law under the provisions of "paragraph one of said section 7 of Act 247 of 1920, and aver that the remaining portion of said section does not apply to this cause for the reason" that the defendant company and the city of Jennings refused to bring suit against the Louisiana Electric Company, against which, it may be proper to state, plaintiffs had obtained judgment as beneficiaries, for the death of James A. Hudson.

Paragraph one of said section of the Act upon which plaintiffs base their demand in the petition, provides that when an injury is suffered by an employee for which compensation is payable under that Act and is sustained under circumstances creating a liability incurred by a third person, the injured person may claim compensation under the Act, and if payment or an award of compensation is made thereunder, such award shall not affect the claim or right of action of such employee or his dependent against the third person, nor be regarded as establishing a measure of damages for the injury.

In the instant case plaintiffs received one thousand four hundred fifty dollars ($ 1450.00) from defendant company which was in reality an award or compensation for the benefit of the city of Jennings which was the employer of James A. Hudson at the time he was killed. This award in compensation, under paragraph one of the Act, could not have been taken as a measure of damages for his death, and plaintiffs would have been left free thereunder to...