McDowell v. National Sur. Corp.

• Decision Date: 06 October 1953
• Docket Number: No. 3695,3695
• Citation: 68 So.2d 189
• Parties: McDOWELL v. NATIONAL SUR. CORP. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 189

68 So.2d 189

McDOWELL v. NATIONAL SUR. CORP. et al.

No. 3695.

Court of Appeal of Louisiana, First Circuit.

Oct. 6, 1953.

Rehearing Denied Dec. 8, 1953.

Writ of Certiorari Denied Feb. 15, 1954.

Huckabay, Seale, Kelton & Hayes, Baton Rouge, for appellants.

F. Louis Gonzales, Baton Rouge, for appellee.

LOTTINGER, Judge.

This is a suit for damages by Louis Wilburn McDowell against National Surety Corporation and the National Surety Marine Insurance Corporation. The claim is for the total sum of $24,690 for personal injuries suffered by petitioner resulting from an automobile accident. The lower court rendered judgment in petitioner's favor in the sum of $17,924.50. Defendant has taken this appeal.

The facts, as found by the lower court, and which are not seriously disputed, are as follows. The defendant company issued to petitioner a liability insurance policy on June 8, 1951, which policy was in full force and effect at the time of the accident. The limits of liability stated in the policy are as follows: 'Bodily injury liability $25,000 each person $100,000 each accident'. It is further provided in said policy that the insurer agrees

'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.'

On the day of the accident, the petitioner and his wife drove the car owned by petitioner and covered by the said liability insurance policy to Thibodaux, Louisiana, to a baseball game. Upon their return trip to Baton Rouge, some distance from Donaldsonville, petitioner's wife took over the driving of the car while petitioner went to sleep on the rear seat. The evidence shows that Mrs. McDowell was a competent driver, and had never had an accident during her some ten years of driving.

Shortly after Mrs. McDowell took over the driving, she was driving at a speed of forty-five to fifty miles per hour when the weather became foggy. She slacked her speed little, if any, although her visibility was reduced by the fog. She was approached by an automobile coming in the opposite direction, the driver of which neglected to give her his dimmers, although Mrs. McDowell signalled for his dimmers two or three times. She became blinded by his bright lights, and collided with another vehicle traveling in the same direction as Mrs. McDowell and on the same side of the highway. The first thing Mrs. McDowell saw of the automobile with which she collided was a 'turning wheel'. She attributes the accident to the blinding lights of the oncoming car and to the condition of the weather, both of which obscured her vision. Prior to the time that she took the wheel, the weather was clear.

As a result of the collision, the petitioner was knocked unconscious. He sustained a brain concussion, a serious injury to one of his eyes, necessitating its removal, a torn cartilage and several other bodily injuries leaving scars on his chin and eyelid. The lost eye has been replaced by a glass eye.

Prior to the accident, petitioner was employed as Captain of the Baton Rouge Fire Department and earned a salary of $275.50 per month. By reason of his physical impairment to his sight, he was demoted from the position of Captain to a Fire Alarm Operator at a salary of $213 per month.

The injuries required petitioner to spend seven or eight days in hospitals and he was incapacitated from any kind of work for four or five months. According to his own testimony and that of the doctors who testified in the case, the petitioner suffered great pain and now, long after the accident, he claims to have severe headaches which, one of the doctors stated, could easily be attributed to the injury.

Defendant first filed exceptions of no cause or right of action, which were overruled by the lower court. The defendant then filed answer denying most of the allegations of the petition but admitting the issuance of the insurance policy upon which the suit is predicated. It denies, however, any liability for the damages under the terms of said policy.

The lower court rendered judgment in favor of petitioner in the amount stated above. The defendant has taken this appeal.

The defendant assigns as errors committed by the lower court, the following reasons:

1. Louisiana Revised Statutes, Title 22, Section 655, for the year 1950, as Amended, which authorizes a direct action against an insurer does not contemplate an action of the nature herein alleged upon and in fact the statute prohibits such a suit as specifically set forth therein.

2. Plaintiff's petition and all of the evidence adduced specifically shows that plaintiff and plaintiff's wife were on a community mission in the nature of a joint venture and any negligence on the part of plaintiff's wife acting as the agent of the community is imputed under the law of Louisiana to plaintiff, her husband, and bars his recovery.

3. Both section 655, Louisiana Revised Statutes of 1950, as amended, and the judgment rendered herein by the Honorable Lower Court are in clear violation and contravention of the United States Constitution Article 1, Section 10, and the Fourteenth Amendment thereto.

4. Plaintiff's suit should be dismissed for the reason that the evidence introduced does not show that Mrs. McDowell was negligent and that her negligence was the proximate cause of the accident.

5. In any event and with all factors considered, the judgment rendered herein by the Honorable Lower Court exceeds a genuinely reasonable amount by more than one-half, and should be reduced.

We will discuss the alleged reasons of error by the lower court, in the order given above.

Defendant claims that LSA-R.S. 22:655, which provides for a direct right of action against the insurer, clearly states that it is the intent that defendant has the same defenses as the insured and that petitioner's right of action is subject to all of the lawful conditions of a policy or contract that could be urged by his wife, Mrs. McDowell. No cases are cited in support of its contention. The portion of the statute which is particularly referred to in its allegation that the same defenses are available to the defendant as are available to the insured, reads as follows:

'* * * It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this state.'

Our interpretation of the quoted portion of the statute is that the insurance company shall have any defenses in a direct action brought by the injured party that it would have to an action brought by its insured. Suppose, for instance that an injured party chose, instead of suing the insurer, to sue the insured party and was awarded judgment. There would be no question then that the insured party could sue his insurer for the amount collected by the injured party. The direct action statute merely gives to the insurance company any defense in the direct action which it might have had in an action by its insured.

In this case, although the policy of defendant was issued in the name of petitioner, according to the terms and conditions of the policy, the insured party, under the clear wording of the policy as will be discussed later, was Mrs. McDowell. Although the defendant has not indicated any defense in particular which he claims would come under the quoted portion of the statute, we assume that he means that the personal defense of coverture available to Mrs. McDowell to a suit instituted against her by her husband would, in this case, inure to the benefit of the defendant insurer. Such a situation, as we see it would not be covered by the provision of the statute. This defense would not have been available to the defendant (insurer) in a direct action against it brought by the insured (Mrs. McDowell). Recovery has been allowed in similar cases in our jurisdiction. Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191; McHenry v. American Employers Ins. Co., 206 La. 70, 18 So.2d 656; Id., La.App., 18 So.2d 840, 843; Hardtner v. Aetna Casualty & Surety Co., La.App., 189 So. 365 and Scarborough v. St. Paul Mercury Indemnity Co., La.App., 11 So.2d 52.

The defendant next claims that petitioner and his wife were on a community mission in the nature of a joint venture and any negligence on the part of petitioner's wife would be imputed to petitioner and would bar his recovery in this matter. We feel that there is no doubt that the couple were on a community mission in the nature of a joint venture. In the event that suit had been instituted by a third party, the petitioner would have been held liable for the negligent acts of his wife under the rules pertaining to the principal and agent relationship. However, there is no third party suing in this case. The situation presented here is one where the principal is attempting to recover for the negligent acts of his agent, and there can be no quarrel against recovery having been allowed many times in such a situation. In McHenry v. American Employers Insurance Co., supra, the court said:

'The Supreme Court has held that plaintiff may recover from his wife's insurer the damages sustained by him from her negligence. In view of this holding we cannot perceive any sound reason why he should be barred from recovery because, as head and master of the community, he could have been held to respond in damages to a third person injured by his wife. It certainly is not consistent to say that coverture in this case does not forbid the husband to recover from the wife's insurer and then say he may not recover because the wife was...