Musmeci v. American Auto. Ins. Co.

• Decision Date: 01 October 1962
• Docket Number: No. 560,560
• Citation: 146 So.2d 496
• Parties: Carlo MUSMECI, Individually and for the Use and Benefit of his Minor Child, Joseph Musmeci, Plaintiff, Appellee-Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY et al., Defendants, Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 496

146 So.2d 496

Carlo MUSMECI, Individually and for the Use and Benefit of his Minor Child, Joseph Musmeci, Plaintiff Appellee-Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY et al., Defendants, Appellants.

No. 560.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 1, 1962.

Rehearing Denied Nov. 26, 1962.

Certiorari Denied Jan. 14, 1963.

Jackson P. McNeely and Gerald P. Fedoroff, New Orleans, for plaintiff-appellant.

Loeb & Livaudais, Stanley E. Loeb, New Orleans for defendants-appellees.

Herbert W. Christenberry, Jr., New Orleans, for defendants-appellees, Peter Villani and the American Employers' Ins. Co.

Before CULPEPPER, PONDER and McGEE, JJ.

WILLIAM H. PONDER, Judge ad hoc.

This is an action in damages ex delicto instituted by Carlo Musmeci, individually and for the use and benefit of his minor child, Joseph Musmeci, for medical expenses, loss of wages, and for personal injuries allegedly suffered by the minor, Joseph Musmeci, in an altercation with the defendant, Peter Villani, which occurred on August 17, 1958.

Named defendants herein were special police officer, Peter Villani, and his insurer on the faithful performance bond, American Employers' Insurance Company; American Automobile Insurance Company, insurer of the Board of Levee Commissioners of the Orleans Levee District; Wallace LeBrun and his liability insurer, American Automobile Insurance Company.

Plaintiff alleges that on or about the date that the injury occurred, his son was a patron in a Lakefront restaurant known as 'Krupp's' or Shelter House #1. That 'Krupp's' is operated as a bar and restaurant by defendant Wallace LeBrun and is owned, maintained and policed by the Board of Levee Commissioners of the Orleans Levee District. That at the time and place the minor, Joseph Musmeci, was wrongfully accused of pouring beer on the floor and was asked to leave the premises. That the special officer on duty, without warning, struck and injured the minor, breaking his jaw, and alleging other acts of negligence on the part of the police officer acting within the scope of his employment as a special officer for the Board of Levee Commissioners of the Orleans Levee District.

The Board of Levee Commissioners of the Orleans Levee District, which will be hereinafter referred to as the Levee Board, had a policy of liability insurance with the American Automobile Insurance Company. Exception of no right or cause of action was filed by defendant, American Automobile Insurance Company, which was sued in direct action as insurer, which in reality is urged as an exception of no cause of action. This exception was overruled by the lower court.

Answer was filed by the insurer of the Levee Board admitting its policy of insurance, but otherwise generally in denial. There was alternative plea that the altercation and injury resulting therefrom were caused by and resulted from the misconduct and unlawful acts of the minor, Joseph Musmeci.

The answer of Peter Villani and his surety, American Employers' Insurance Company, is one of general denial, with the affirmative allegation of provocation on the part of the minor. Alternatively these defendants plead contributory negligence and wilful misconduct.

This case was tried before a jury in the lower court and resulted in a verdict and judgment for medical expenses, personal injuries and loss of wages in solido against American Automobile Insurance Company and Peter Villani. In accordance therewith, formal judgment was duly read, rendered and signed in open court February 1, 1961. From this judgment plaintiff has devolutively appealed on the ground of inadequacy. The American Automobile Insurance Company has appealed devolutively from the judgment overruling its exception of no cause of action and from the trial on the merits. Defendant Peter Villani has not appealed.

The most serious question presented on this appeal is on the exception of no cause of action. This exception is based on the question of whether the defense of sovereign immunity is available to the public liability insurer of a state agency or subdivision when the insurer has been sued in a tort action by direct action under the provisions of LSA-R.S. 22:655, without joining the assured agency as a party defendant. Eminent counsel for insurer concedes in his brief that the defense of governmental immunity is personal to the Levee Board and may not be pleaded by its insurance carrier. However, he argues that Respondeat Superior does not apply to the sovereign or its agencies and that a policeman is not an agent capable of binding the governmental agency for his torts. It is urged that under the holdings of Duree v. Maryland Casualty Company, 238 La. 166, 114 So.2d 594, and Stephens v. Natchitoches Parish School Board, 238 La. 388, 115 So.2d 793, an injured claimant cannot have a cause of action against the Levee Board even where the Legislature grants permission to sue the State or its agency. That therefore there is no cause of action against the insurer of the Levee Board under the provisions of LSA-R.S. 22:655, that reads in part as follows:

'It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable * * *.'

In support of this position, defendant insurer cites and relies upon the following authorities: Hall v. City of Shreveport, 157 La. 589, 102 So. 680; City of New Orleans v. Kerr, 50 La.Ann. 413, 23 So. 384; Planters' Oil Mill v. Monroe Waterworks & Light Co., 52 La.Ann. 1243, 27 So. 684; Joliff v. City of Shreveport, 144 La. 62, 80 So. 200; Howard v. City of New Orleans, 159 La. 443, 105 So. 443; Taulli v. Gregory, 223 La. 195, 65 So.2d 312; Prunty v. City of Shreveport, 223 La. 475, 66 So.2d 3; Duree v. Maryland Casualty Company, supra, and Stephens v. Natchitoches Parish School Board, supra.

Taking up these cases in order, the case of Hall v. City of Shreveport is clearly distinguishable from this case. That case presented the question of whether a widow and minor children of a policeman who was killed while discharging his duties for the City of Shreveport were entitled to benefits under the Workmen's Compensation Statute. Although the Supreme Court discusses the doctrine of sovereign immunity and the distinction between governmental and proprietary functions, we do not think this case is apposite.

The case of City of New Orleans v. Kerr has only remote relevance to this case. It simply held that although a municipal corporation in its public character was not answerable for the nonfeasance or malfeasance of its public agents, where the city let out by contract a portion of the police powers of the city for the maintenance of a livestock pound and that it would furnish police protection to enable the contractor to perform his duty, the city was liable for breach of the contract in failing to furnish the stipulated police protection.

The case of Planters Oil Mill v. Monroe Water Works holds more strongly in favor of the imposition of liability upon the insurer of the Levee Board than to relieve it of responsibility. It presents an interesting rough analogy to the case at hand. The exception filed in that case by the City of Monroe was sustained and the City was exonerated from liability for the nonfeasance or malifeasance of its officials in connection with the performance and fulfillment of the contract. Observing that the contract was intended by both parties to inure to the benefit of the inhabitants of the town and that the stipulations therein were in their favor, the court concluded that a sufficient cause of action against the company was disclosed to send the case to trial on its merits.

The case of Joliff v. City of Shreveport held that a suit against the City of Shreveport and the Commissioner of Public Safety for unlawfully invading an establishment, that the police officers exercised a governmental function and, in the absence of a positive statute to the contrary, connot by their tortious acts render the municipality liable in damages ex delicto.

In the case of Howard v. City of New Orleans it was held that a municipality in the exercise of a governmental function is not liable in damages for the negligence of its agents or appointees in the absence of some exception to the rule. To the same effect were the decisions in Prunty v. City of Shreveport and Taulli v. Gregory. The latter case held that an exception as to personal liability of the arresting officer, Mayor and Marshal, for malicious prosecution was not sound and that a cause of action was stated as against them.

The contention of the defendant insurer, simply stated, is that unless the injured party has a cause of action against the insured, he cannot maintain a suit against the insurer, even though he might have a right of action. The view that the sovereign is immune from liability without its consent for its torts and the torts of its officers and employees is not before us, because the Levee Board has not been joined as defendant and there has been no authorization by the Legislature for suit against the Levee Board in this instance.

The classic distinction which is recognized in Louisiana between governmental powers, functions and responsibilities in the exercise of which the State, its agencies and subdivisions are not liable for tortious conduct, and private or proprietary activities for which there may be liability for tortious conduct, is suggested by the facts in this case. The Board of Levee Commissioners of the Orleans Levee District is a corporate body politic, a special State agency or subdivision, created by Act of the Legislature. LSA-R.S. 38:1231 et seq. LSA-Const. Art. 4, Sect. 4. Board of Levee Com'rs v. Whitney Trust & Savings Bank, 171 La. 28, 129 So. 658. The facts in this case reveal that the Levee Board owned the bar and restaurant known as 'Krupp's' or Shelter...