McDaniel v. Audubon Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: SAVOY; PER CURIAM
• Citation: McDaniel v. Audubon Ins. Co., 121 So.2d 531 (La. App. 1960)
• Decision Date: 31 May 1960
• Docket Number: No. 5033,5033
• Parties: James McDANIEL v. AUDUBON INSURANCE COMPANY et al.

Page 531

121 So.2d 531

James McDANIEL v. AUDUBON INSURANCE COMPANY et al.

No. 5033.

Court of Appeal of Louisiana, First Circuit.

May 31, 1960.

Rehearing Denied June 29, 1960.

Burden & Davidson, Alexandria, Jack L. Simms, Leesville, for appellants.

Wood & Jackson, Leesville, for appellee.

Before TATE, FRUGE and SAVOY, JJ.

SAVOY, Judge ad hoc.

This suit was instituted by plaintiff, James McDaniel, against Mrs. Mae O'Neal Pitre and Audubon Insurance Company, the insurer of Mrs. Pitre, for property damages and physical injuries which are alleged to have occurred to plaintiff as a result of his car being struck by a car driven by Mrs. Pitre on about September 4, 1958.

To this suit defendants filed an exception of res judicata, an exception of prematurity, and an exception of no cause and right of action, and an answer to said suit denying generally all the allegations of plaintiff's petition and setting out the compromise and release executed by the defendants and plaintiff, dated the 9th day of September, 1958.

The district court referred the exceptions to the merits, and upon the trial of the merits overruled said exceptions and granted plaintiff judgment against defendants for $10,750, plus expert fees, totaling $450, and ordered defendants to pay all costs of court.

From this judgment defendant Audubon Insurance Company moved for and perfected a suspensive appeal to this court.

Plaintiff filed in this court a motion to dismiss the appeal of defendant, Mrs. Mae O'Neal Pitre, on the ground that she had failed to post or advance any type of bond for a suspensive or devolutive appeal, and that accordingly, her appeal be dismissed.

Plaintiff also filed an answer to the appeal asking that the award granted him by the trial judge be increased, and in the alternative that the judgment be affirmed against Mrs. Pitre and Audubon Insurance Company, jointly and in solido.

Plaintiff had filed a previous suit on October 22, 1958, between the same parties being No. 17,850 on the docket of Vernon Parish, and was met with an exception of res judicata based on the release or act of compromise, dated September 9, 1958, which has already been mentioned herein. Evidence was adduced on the exception, and before the matter could be decided by the district judge, plaintiff dismissed his suit and filed the present suit.

Counsel for defendant Audubon Insurance Company in his brief sets out that the lower court was in error in forcing Audubon Insurance Company to go to trial on the merits without first affording said insurance company an opportunity to have the appellate court pass on the validity of the release and that the lower court erred in setting aside the compromise agreement.

The Court will first discuss the exception of prematurity, exception of res judicata, and exception of no cause and no right of action, for if one or all of these defenses are good, there will be no need to decide the case on the merits.

On Exception of Prematurity and Exception of Res Judicata

and Exception of no Cause and no Right of Action

The evidence discloses that shortly after the accident plaintiff was contacted by Mr. Jack Dean Soden, insurance adjustor for Audubon Insurance Company, in connection with the accident which occurred between the cars driven by Mrs. Mae O'Neal Pitre and plaintiff, and that on about September 9, 1958, Soden and plaintiff went to the Cain Motor Company for the purpose of replacing the car owned by plaintiff and which had been declared to be a total wreck as a result of the aforesaid accident; that plaintiff finally selected a car and he then signed the release in question. Said release reads as follows:

'Release of all Claims

'Know All Men By These Presents:

'That the undersigned, being of lawful age, for the sole consideration of One Hundred and no/100 Dollars ($100.00) to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does, hereby and for my/our/its heirs, executors, administrators, successors and assigns release, acquit and forever discharge Mrs. C. Pitre & Audubon Ins. Co. and his, her, their, or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations, or partnerships of and from any and all claims, actions, causes, of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 4th day of September, 1958, at or near Alexandria, La.

'It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace.

'The undersigned hereby declare(s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely (ies) wholly upon the undersigned's judgment, belief and knowledge of the nature, extent, affect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

'The undersigned further declare(s) and represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital.

"The Undersigned Has Read the Foregoing Release and Fully Understands It.

"Signed sealed and delivered this 9th day of September, 1958.

       "Caution: Read Before Signing Below
                "(s) Herman Lovil               His             LS
                -----------------------  -------------------------
                 Witness                 James  X     McDaniel  LS
                                         -------------------------
                 (s) J. D. Soden
                -----------------------
                 Witness                        Mark            LS
                                         -------------------------
                -----------------------
                 Witness
                 "State of ______ )
                                  ) ss
                 "County of _____ )
                "On the ______ day of ______, 19______
                before me personally appeared ______
                to be known to be the person(s) named herein
                and who executed the foregoing Release
                and ______ acknowledged to me that ______
                voluntarily executed the same
                ---------------Notary Public"
                "My term expires
                ___, 19___
                

The following persons testified in connection with the release: Plaintiff, and Herman Lovil, Victor Ferguson, John J. Courtney, all employees of Cain Motor Company, and J. D. Soden, insurance adjustor for Audubon Insurance Company. Herman Lovil testified that he signed as a witness to the act of compromise, but did not hear all the conversation between Soden and the plaintiff as he was not interested in the conversation, and the release was not read in the presence of the witnesses. Victor Ferguson, Sales Manager of the Cain Motor Company, was not present at the signing of the release, and his only interest in the case was the sale of the car to plaintiff and the collection of same. John J. Courtney, salesman for Cain Motor Company, was sent to plaintiff's home where the draft was endorsed by plaintiff's wife. J. D. Soden testified that he did not read the release to plaintiff, since plaintiff could not read or write, but explained it to him; that he valued the property damage of plaintiff's car at $100; that the case was settled primarily as a property damage claim; that plaintiff was not sent to a doctor prior to the execution of the release. He then testified that plaintiff was allowed to retain the vehicle which had been wrecked and which had a salvage value of about $25. The draft in question dated September 11, 1958, is identified as Exceptor Exhibit No. 2, was for the sum of $100, the kind of loss is designated as 'Property Damage,' and said check or draft was made payable to James McDaniel and Cain Motor Company.

The exception of prematurity was based on the proposition that plaintiff was instituting a direct action to set aside the compromise agreement, and in order to do this as required by law, he must return or tender the amount of compromise settlement which he seeks to set aside. Plaintiff sent to defendant a letter with a $100 bill as a tender and...