New Amsterdam Casualty Co. v. Soileau

Decision Date27 May 1948
Docket NumberNo. 12147.,12147.
Citation6 ALR 2d 128,167 F.2d 767
CourtU.S. Court of Appeals — Fifth Circuit

Joseph A. Loret, of Baton Rouge, La., and Atlee P. Steckler, of Ville Platte, La., for appellant and cross-appellee.

Thos. W. Leigh, of Monroe, La., amicus curiae.

Edward Dubuisson, of Opelousas, La., for appellee and cross-appellant.

Before SIBLEY, McCORD, and LEE, Circuit Judges.

LEE, Circuit Judge.

This is a suit in damages brought under Act No. 55 of 1930, Statutes of Louisiana,1 by the appellee against the appellant as insurer of Louis O. Campbell. Appellee, for the use and benefit of her minor son Joseph Soileau, seeks to recover for personal injuries suffered by him as the result of an accident which occurred while he was employed by Campbell. Campbell, the appellee, and her son Joseph are all residents and citizens of the Parish of Evangeline, La., and the accident which resulted in personal injury to Joseph occurred in that parish. Campbell was engaged in the trucking business. On the occasion in question, a 1942 one and a half ton Ford truck owned by him and equipped with a hoist was in process of being loaded with a drilling rig. The truck was in the charge of an employee of Campbell, and as the drilling rig was being loaded on the truck it fell and crushed Joseph's left foot, necessitating amputation of the foot. The complaint charged that Joseph had been employed by Campbell without appellee's consent and contrary to Act No. 301 of 1908, as amended by Act No. 210 of 1944, of the Legislature of Louisiana, which prohibits the employment in such work of children of Joseph's age, and that his employment was contrary to law and void. It was also alleged that Campbell's truck was insured against public liability by two policies issued by appellant, and that under the provisions of each, appellant's liability for bodily injury was $25,000. Judgment against appellant was prayed for in the sum of $50,000.

One of the policies issued by appellant provided that it would not apply "to bodily injury or death of an employee of the insured while engaged in the business of the insured," and the other provided: "This policy does not apply * * * under coverage (A) and (C) to bodily injury or death of any employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance, or repair of the automobile."

The case was tried to a jury and resulted in a verdict against appellant in the sum of $15,000. From the judgment entered upon the verdict, appellant appeals. Appellant contends (1) that the State of Louisiana, in passing Act No. 55 of 1930 permitting the insurer of an insured to be sued directly by an injured person could not thereby confer jurisdiction on the federal court where the actual controversy is between citizens of the same State; (2) that the provisions of the policies did not apply for the reason that both exempted an employee of the insured; (3) that the violation of Act No. 301 of 1908, as amended by Act No. 210 of 1944, was not the proximate cause of the accident, hence, of itself, it created no liability for damages resulting from the accident; and (4) that the minor was guilty of contributory negligence in permitting his foot to be beneath the suspended rig.

Act No. 55 of 1930 La. was passed as an amendment to Act No. 253 of 1918. Both acts were passed to grant to persons injured or damaged by motor vehicles covered by insurance against public liability a right of action against the insurer company. In speaking of the two acts, the Supreme Court of Louisiana, in Miller v. Commercial Standard Insurance Co., 199 La. 515, 6 So.2d 646, 647, said: "Act No. 55 of 1930 granted to persons injured or damaged by a motor vehicle covered by insurance against liability a privilege which they did not theretofore have. It gave to them `a right of direct action against the insurer company' alone, to recover such damages as they may have sustained by the fault of the insured. Under Act No. 253 of 1918, they had no `right of direct action' against the insurer except in cases where the insured was insolvent or bankrupt. But, under Act No. 55 of 1930, which amended the act of 1918, the injured person or his heirs may in all cases maintain a direct action against the insurer, under the terms and limits of the policy." (Emphasis ours.)

In an earlier case which had to do with Act No. 253 of 1918, the same court said: "* * * while the policy was written primarily to indemnify Richard for loss for accidental injury caused by him, yet, in obedience to Act No. 253 of 1918, the policy contains a clause, * * * granting an action to the injured person or his heirs against the company, under the terms of the policy, for an amount, not exceeding the limits of the policy, in the event of the insolvency or bankruptcy of the insured. This makes the policy, under the conditions named, inure to the benefit of the injured party, and makes it, in effect, one of accident insurance in favor of the person injured, when the accident is caused by the insolvent or bankrupt." Lawrason v. Owners' Automobile Ins. Co. of New Orleans, 172 La. 1075, 136 So. 57, 58, 77 A.L. R. 1412. (Emphasis ours.)

Act No. 253 of 1918 is similar in its provisions to Section 109 of the Insurance Law of New York, Consol.Laws, c. 28, Laws 1918 c. 182. The New York act came under consideration of the Supreme Court of the United States in Merchants Mutual Automobile Liability Ins. Co. v. Smart, 267 U.S. 126, 45 S.Ct. 320, 321, 69 L.Ed. 538. With respect to the New York statute that Court said: "* * * Having in mind the sense of immunity of the owner protected by the insurance and the possible danger of a less degree of care due to that immunity, it would seem to be a reasonable provision by the state in the interest of the public, whose lives and limbs are exposed, to require that the owner in the contract indemnifying him against any recovery from him should stipulate with the insurance company that the indemnity by which he saves himself should certainly inure to the benefit of the person who thereafter is injured. Section 109 does not go quite so far. It provides that the subrogation shall take place only when the insured proves insolvent or bankrupt, and leaves the injured person to pursue his judgment against the insured if solvent without reliance on the policy." (Emphasis added.)

The 1930 Act is not wholly procedural, for it confers also a substantive right upon the injured party in the direct action granted such party against the insurer. Nor is the act procedural in the sense that the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, are procedural; it deals neither with practice nor procedure in civil actions. If under it suit is instituted in a State court, State practice and procedure govern; if instituted in a federal court, federal practice and procedure become applicable. Equally without merit is the contention that the court below was without jurisdiction, since the actual controversy was one between the insured and the injured party, both citizens of Louisiana. The Act of 1918, as amended by the Act of 1930, makes the indemnity in favor of the insured inure to the benefit of the person who thereafter is injured by the negligence of the insured. Lawrason v. Owners' Automobile Ins. Co. of New Orleans, supra; and Merchants Mutual Automobile Liability Ins. Co. v. Smart, supra. In other words, it subrogates the injured person to all the rights of the insured within the terms and limits of the policy. Where the asserted right of action arises by subrogation and not by assignment, the subrogated party may sue on such right in a federal court if there is diversity of citizenship between him and the defendant, though the original debtor and the defendant are citizens of the same State. City of New Orleans v. Whitney, 138 U.S. 595, 11 S.Ct. 428, 34 L.Ed. 1102; 2 Hughes, Federal Practice, § 894, p. 148.

Act No. 301 of 1908 La., as amended by Act No. 210 of 1944, prohibits a minor under the age of sixteen being employed, permitted, or suffered to work in and about or in connection with power-driven machinery, and prohibits a minor under eighteen years of age being employed, permitted, or suffered to work,

"(10) As driver of any motor vehicle used for commercial or industrial purposes or as a helper thereon, the term `helper' being defined as any person other than the driver whose work in connection with the transportation or delivery of goods or commodities necessitates or requires riding in or on a motor vehicle;

"(11) In the operation of * * * hoisting machines."

The Legislature of Louisiana in passing these acts clearly had in mind the protection of children from accidents resulting from working in the prohibited fields. Cropper v. Mills, La.App., 27 So.2d 764. In employing Joseph Soileau to do work on or about the truck, Campbell, the insured, clearly violated the act. Joseph was some five months over fifteen years of age and was employed without the knowledge or consent of his mother, his only surviving parent. In such circumstances it may not be said that he was an employee of Campbell. That relation can arise only out of a contract express or implied. A fifteen-year-old boy is without capacity in general to enter into any express contract, and Act No. 301 o...

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