Metropolitan Casualty Ins. Co. of New York v. Bowdon

• Decision Date: 04 February 1935
• Docket Number: 32613
• Citation: 159 So. 394,181 La. 295
• Court: Louisiana Supreme Court
• Parties: METROPOLITAN CASUALTY INS. CO. OF NEW YORK v. BOWDON et al

159 So. 394

181 La. 295

METROPOLITAN CASUALTY INS. CO. OF NEW YORK v. BOWDON et al

No. 32613

Supreme Court of Louisiana

February 4, 1935

Appeal from Ninth Judicial District Court, Parish of Rapides; L. L Hooe, Judge.

Action by the Metropolitan Casualty Insurance Company of New York against W. George Bowdon and the Associated Indemnity Corporation of San Francisco. From judgment in favor of defendants, plaintiff appeals.

Appeal transferred to the Court of Appeal of the Second Circuit.

Alvin R. Christovich, of New Orleans, and George J. Ginsberg, of Alexandria, for appellant.

B. F Thompson, Jr., and Hawthorn, Stafford & Pitts, all of Alexandria, for appellees.

OPINION

HIGGINS, Justice.

Plaintiff an insurance company, claiming to be a statutory subrogee and a conventional assignee, brought this action against the defendants, an alleged tort-feasor and his insurance carrier in solido, to recover damages for the wrongful death of an employee in the sum of $ 5,050, representing the amount of compensation paid by the plaintiff, and the balance for which it was liable, to the widow and minor child of the deceased employee, who was covered by a policy of compensation insurance issued by the plaintiff.

The petition alleges that the deceased was killed while riding as a guest in the defendant's automobile on thepublic highway near Bunkie, La., and that his death was due to the negligence of the defendant in failing to keep his car under proper control, neglecting to maintain an adequate lookout, and driving at a fast, unsafe, and reckless rate of speed on a slippery road, while the atmosphere was foggy and misty.

Defendant, driver and owner of the automobile, denied that he was in any way at fault in causing the accident, and averred that it was unavoidable, and, in the alternative, specially pleaded contributory negligence on the ground that the deceased failed to protest against the manner in which he was driving the automobile at the time of the fatal accident. He also specially pleaded that the plaintiff had erroneously paid the alleged compensation, as it was not liable therefor. The defendant insurer interposed the same defenses.

There was judgment in favor of the defendants, dismissing the plaintiff's suit, and it has appealed to this court.

When the case was called for argument here, we ex proprio motu raised the question as to the jurisdiction of this court ratione materiae.

The relevant part of section 10 of article 7 of the Constitution of Louisiana, adopted in 1921, reads as follows:

"The Supreme Court shall have control of, and general supervision over all inferior courts and shall have further jurisdiction as follows: * * *

"It shall have appellate jurisdiction in civil suits where the amount in dispute or the fund to be distributed, irrespective of the amount therein claimed, shall exceed two thousand dollars exclusive of interest, except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances; nor shall such appellate jurisdiction extend to any suit for compensation under any State or Federal Workmen's compensation law, or employer's liability act; provided, that appeals properly granted to the Supreme Court, in such excepted cases, prior to the adoption of this Constitution, shall be finally disposed of by said court."

The above-excepted suits are placed under the jurisdiction of the Courts of Appeal of Louisiana. Constitution 1921, art. 7, § 29.

It appears that the plaintiff has regularly paid the amount of the weekly compensation awarded to the widow and minor child of the deceased by the Industrial Board of Indiana; the compensation proceeding having been instituted in the state of Indiana. Plaintiff asserts that under the Workmen's Compensation Statute of that state, Acts 1929, c. 172, pp. 537, 540, 566, §§ 13 and 73 thereof, the employer or his insurer are subrogated -- up to the amount of the compensation they are liable for -- to the rights of the insured employee or the deceased employee's dependents, against third parties who negligently injured or cause the death of the employee. We have similar provisions in our compensation statute. Section 7, Act No. 20 of 1914, as amended by Act No. 247 of 1920, § 1, and sections 24, 25 and 26. After paying the widow and the minor child the accrued compensation, the plaintiff took a conventional assignment of their rights against the defendants, as a result of the injuries and death of her husband, to the extent of $ 5,050, the amount of compensation awarded by the Industrial Board.

The rights of the plaintiff as statutory subrogee and conventional assignee of the claims of the widow and minor child against the alleged tort-feasor and his insurance carrier are the same as the rightsof the widow and the minor child against the defendants; i. e., the right to claim damages for the alleged negligent killing of the deceased. It is clear that, if the widow in...