New Orleans & C. R. Co. v. Maryland Casualty Co
| Decision Date | 16 January 1905 |
| Docket Number | 15,323 |
| Citation | 38 So. 89,114 La. 153 |
| Parties | NEW ORLEANS & C. R. CO. v. MARYLAND CASUALTY CO |
| Court | Louisiana Supreme Court |
Rehearing denied February 27, 1905.
Certiorari to Court of Appeal, Parish of Orleans.
Action by the New Orleans & Carrollton Railroad Company against the Maryland Casualty Company. Judgment for defendant was affirmed by the Court of Appeal, and it applies for certiorari or writ of review. Dismissed.
Purnell Mitchell Milner, for applicant.
Dart & Kernan, for respondent.
Plaintiff in the court below (respondent here) brought this suit against the defendant the Maryland Casualty Company (relator here) for judgment for loss sustained, and which it claims is secured by the policy which it (the New Orleans & Carrollton Company) held.
The amount paid by the railroad company, and which it claims, and for which it obtained judgment before the Court of Appeal, is $ 1,516.10, including costs. After compromise had been made, and payment thereunder received, the widow, having, after payment, qualified as tutrix, brought suit against the railroad a second time; this time, as tutrix, availing herself of the fact that she was not tutrix when the compromise was made, and obtained judgment for said sum, which was paid to her as required by the policy which the railroad company held.
Hereafter these two companies will be referred to, one as the "Railroad Company," the other as the "Insurance Company." The railroad company was insured in the Maryland Casualty Company against "loss from common-law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered by an employe of assured, resulting in his injury or death," and one of the conditions was, if suit was brought for damages, the insuring company was to defend the suit in the name of the railroad company, settle the claim, and pay.
Another condition of insurance was that the assured should not settle any claim, nor incur any expense, nor interfere in any settlement or proceeding, without the written consent of the insurance company.
One of the railroad company's hands having met with an accident whilst in its employment, which resulted in his death, the notice required was timely given by the railroad company to the insurance company. The widow of the deceased workman settled the claim with the insurance company, and accepted therefor the said sum of $ 700, represented by the receipt, a copy of which is inserted in our opinion infra. This receipt, which she signed, sets forth that she received the amount both as widow and as tutrix in full satisfaction of all claims, whether as widow or as tutrix -- to copy from her receipt: "For myself as widow and natural tutrix of my child."
We have seen the widow had not qualified as tutrix, and had no right at the time to sign a receipt in the capacity of tutrix. It follows from this that payment was made to one not entitled to give full acquittance, in so far as the minor child was concerned.
The railroad company insists that the whole amount of the receipt should be eliminated from all consideration in the settlement between it and the relator, because the compromise entered into between the insurance company with the widow was illegal, and could not bind it (the railroad company) in any way; that this is chargeable to the insurance company's error in the premises, or possibly to its neglect.
On the other hand, the insurance company's insistence is that the amount of $ 700 went to pay the widow for her part of the damages.
Another ground of complaint is that some time before the widow in question brought suit to recover for her minor child, she, as tutrix, now that she had become tutrix, offered to compromise this claim -- i.e., claim of her minor child -- for the sum of $ 800, a fact made known by the railroad company and its (the railroad company's) desire to settle on that basis to the insurance company; but that the latter company declined to accept the offer, and determined to let the tutrix sue and it to defend the suit.
The suit was brought by the tutrix, and judgment obtained for the sum of $ 1,300, with the costs amounting to $ 1,516.10, which the railroad company in the suit before us for decision now claims as due it on the ground that the whole of this amount is due by the insurance company by reason of the fact that at the instance of the latter the railroad company defended the suit which was lost, and, in consequence, rendered the latter insurance company liable for the difference between the $ 800 the tutrix offered to accept as a compromise and the $ 1,300 which she afterward gained in the suit, as before mentioned.
In the suit to which reference is made by these companies -- that is, Lettie Thompson, widow of L. E. Singleterry, Tutor, for the Use, etc., v. New Orleans & Carrollton Railroad Company, 108 La. 52, 32 So. 177 -- the compromise in question between the widow and the railroad company was not pleaded, and no point was specially made of this discharge, signed by the widow personally and as tutrix.
The following receipt was produced, and is in evidence in the following words:
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