Johnson v. Sundbery

• Decision Date: 05 October 1933
• Docket Number: 1196
• Citation: 150 So. 299
• Court: Court of Appeal of Louisiana — District of US
• Parties: JOHNSON ET AL. v. SUNDBERY

150 So. 299

JOHNSON ET AL. v. SUNDBERY

No. 1196

Court of Appeal of Louisiana, First Circuit.

October 5, 1933

A. W Muller and Joseph A. Scramuzza, both of New Orleans, for appellant.

St Clair Adams and St. Clair Adams, Jr., both of New Orleans for appellee.

OPINION

ELLIOTT Judge.

Rodney Johnson, acting individually and also as natural tutor for Estelle and Major Johnson, both minors, issue of his marriage with Sarah Johnson, deceased, claims of Oscar C. Sundbery $ 3,000 for himself, $ 3,000 for Estelle, and $ 3,000 for Major, a total of $ 9,000, with interest, as damages, on account of the death of Sarah Johnson, his wife and the mother of his children.

He alleges that on November 1, 1930, at about the hour of 6 o'clock p. m., his wife, while going east on the highway between Houma and Schriever in the direction of Schriever, was struck by an automobile, belonging to Oscar C. Sundbery, which was being driven by his son, Fred Sundbery, going in the direction of Houma, and painfully and fatally injured; that said Fred Sundbery, who was about 14 years of age, was driving defendant's automobile at the time at a rapid and excessive rate of speed and in a most negligent and reckless manner; that the death of plaintiff's wife, the mother of his children, was due to the fault and negligent driving of defendant's son. The petition of the plaintiff contains a number of averments not mentioned, but a further statement is not necessary to the proper understanding of the issues, which require decision on the present appeal.

The defendant excepted to the plaintiff's petition on the ground that it did not set forth a cause of right of action, and at the same time, continuing his pleading, reserving all rights under his exception, he filed an answer.

In his answer, after denying all the acts of negligence, alleged against his son, he admits that an impact occurred between his automobile, while it was being driven by his son on the highway, and plaintiff's wife. He alleges in his answer that the accident occurred between Schriever and Houma; that his son, while driving in the direction of Houma on the right-hand side of the road, saw an automobile ahead of him in the dark, parked in the center of the road at an angle of 40 degrees, with the left rear end slightly on the side of the road on which his son was driving; that his son, upon seeing the automobile, slowed down his speed to approximately 15 miles per hour and proceeded to pass the parked automobile cautiously, but when he reached a point opposite the driver's seat, a party afterwards learned to be Sarah Johnson, suddenly and without warning ran directly from the rear of the parked automobile into the path of his automobile; that the woman was not visible to his son until the moment she ran in front of him not more than 5 feet distant; that his son immediately applied his brakes and swerved to the right, but it was impossible to avoid striking her.

He prays that plaintiff's demand be rejected on the ground that his son was not at fault and on the ground that the accident was caused by the negligence of Sarah Johnson. In the event it is found, however, that his son was negligent and at fault in the matter, he then, in that event, alleges that plaintiff's wife was also negligent, and that her contributory negligence was as much responsible for the accident as that of his son, and he prays, in that event, that plaintiff's demand be rejected on that account.

He denies that plaintiff's wife died as a result of being struck by his automobile, and alleges that she died from a heart condition, existing long before the accident.

And without admitting liability, he further pleads a settlement with Sarah Johnson on account of the injuries, which she received in the collision with his automobile, and he urges his settlement with her as full payment and discharge of any amount that might have been due her on said account.

The court for written reasons rendered judgment rejecting plaintiff's demand as in case of nonsuit. The plaintiff has appealed.

The exception of no right or cause of action, with which defendant commences his answer, is in fact not an exception but an answer, putting at issue plaintiff's right to recover; the contention being that the release, signed by Sarah Johnson, operated to discharge the defendant from all liability on account of the death of plaintiff's wife; that, if any were sustained, the settlement had repaired, paid for, and discharged defendant on said account.

This release reads as follows:

"Release

"Know all men, by these presents, that I, Sarah Johnson, for the sole consideration of Eight Hundred and Fifty Dollars to me in hand paid by Oscar C. Sundbery, the receipt whereof is hereby acknowledged, have released and discharged and, by these presents, do for myself, my heirs, executors, administrators and assigns release and forever discharge the said Oscar C. Sundbery and all other persons, firms or corporations, liable from all claims, demands, damages, actions, causes of action or suits at law or in equity of whatsoever kind or nature for or because of any matter or thing done, omitted or suffered to be done by said parties prior to and including the date hereof and particularly on account of all injuries, both to person or property, resulting or to result from an accident, which occurred on or about the 1st. day of November, 1930 at 6:30 P. M.

"In witness hereof I have hereunto set my hand and seal this 24th. day of

"January, 1931.

Sarah her X mark Johnson

"In witness of:

"C. A. Poret

"L. R. Solares"

Under the law, Civil Code, art. 2334 (amended by Act No. 186 of 1920) and article 2402 (amended by Act No. 68 of 1902), the damages due Sarah Johnson, if any were due her by the defendant on account of her injuries as alleged, was her separate and paraphernal property and the release discharged defendant on account of all injuries which might be claimed under her rights as her heirs or assigns, but not those which might be due her husband and children not as her heirs or assigns but solely by virtue of the provisions of Civil Code art. 2315 (amended by Act No. 159 of 1918).

The Civil Code, art. 2315, was amended by Act No. 159 of 1932 but plaintiff's rights accrued before this amendment was passed and while the article was in force and effect as amended by Act No. 159 of 1918, which as thus amended reads: "Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or surviving spouse of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year, from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in cases where there is no surviving spouse or minor child or children. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters as the case may be." Under this law, the plaintiff, as surviving husband, and his minor children have a right of action against the party by whose fault and negligence the wife and mother has been injured in such a way as to cause her death and only in the event of her death as a result of the injury. This right of action could not be released by the wife and mother, because it never belonged to her but accrues to the husband and minor children solely as a result...