Rambin v. Southern Sales Co., Inc.
| Decision Date | 16 December 1932 |
| Docket Number | 4430 |
| Citation | 145 So. 46 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | RAMBIN ET UX. v. SOUTHERN SALES CO., INC., ET AL |
Rehearing denied January 19, 1933.
Thatcher Browne, Porteous & Myers and Chandler & Chandler, all of Shreveport, for appellants.
Harry V. Booth, of Shreveport, for appellees.
On November 10, 1931, Ernest and Mary Rambin, husband and wife residents of the city of Shreveport, plaintiffs herein, were making an automobile journey from their home to Crichton, La., a town in Red river parish on United States paved highway No. 71. Just before they reached the village of Elmgrove on said highway, at about 6:30 o'clock in the evening, Ernest Rambin, who was driving a model "T" Ford automobile with his wife sitting by his side, observed a wagon drawn by two mules meeting him and traveling in a northerly direction on the east side of the highway. Attached to and drawn by this wagon there was another wagon of the same kind, so that the mules were really pulling two wagons along the highway.
In addition to the two wagons, Rambin saw an automobile traveling in the same direction and rapidly approaching from the rear. Very soon it became apparent to the plaintiffs that the driver of this on-coming car would attempt to overtake and pass the wagons. Realizing the danger of such a movement, Rambin pulled his car just as far to the right side of the road as he could so that the left wheels of his car lacked only a few inches of being off the pavement.
In spite of this precaution on the part of the plaintiff Ernest Rambin, the on-coming car, in attempting to overtake and pass the two wagons, failed in the attempt and collided head-on with the plaintiffs' car. When Rambin pulled to the extreme right of the road, he did so in order to afford as wide a passage as possible between the car and the wagons in the hope and expectation that the driver of the other car would negotiate the passage and resume his position in front of the wagons on the right or east side of the highway.
When the two cars collided they were both demolished. Ernest and Mary Rambin were seriously injured and the driver of the other car was killed instantly. Subsequently, investigation disclosed that the driver of the other car was James D. Harper; that he was driving a car owned by the Southern Sales Company, Inc., by whom he was also employed; and that at the time of the accident he was on business for his employer, and that he was performing service incident to, and in the scope of, his employment.
The two plaintiffs were removed to a sanitarium in the city of Shreveport as soon as possible, where they received treatment for several weeks.
The Southern Sales Company, Inc., carried liability insurance on the car that was driven by Harper in the Associated Indemnity Corporation of San Francisco, Cal. The insurance was written by the Mayfield-Jones Insurance Agency, Inc., local agent in the city of Shreveport, through Ledbetter & Page, Inc., general agent in New Orleans.
Subsequent to the date of the accident, James S. McConathy was appointed as receiver for the Southern Sales Company, Inc., on February 13, 1932, by the first district court of Caddo parish.
On March 24, 1932, the plaintiffs, Ernest and Mary Rambin, filed this suit against the Southern Sales Company, Inc., through James S. McConathy, receiver, and the Associated Indemnity Corporation, who was cited by service on Alice Lee Grosjean, Secretary of State.
In their petition plaintiffs allege that they were seriously injured and damaged in the said accident, and that the accident was solely and exclusively the result of the gross and wanton negligence and carelessness of James D. Harper, the driver of the automobile owned by the defendant Southern Sales Company, Inc., and insured by the defendant Associated Indemnity Corporation.
Ernest Rambin, the husband, sued for damages in the sum of $ 8,855, which he itemizes as follows:
Loss of salary and wages, both past and
future
$ 1,500.00
Pain and suffering
2,000.00
Sanitarium account for services
rendered Mary Rambin and himself;
physician and surgeon's fees for
services rendered Mary Rambin and
himself, both past and necessary to be
rendered in the future by reason of
said accident, as well as medicine
purchased as a result of said
accident
1,200.00
Permanent injury to left leg; scars on
right hand and left leg, and general
impairment of health by reason of said
accident
4,000.00
Loss of automobile
75.00
Nursing services required for Mrs. Mary
Rambin (twenty nights)
80.00
And Mary Rambin, the wife, asks for $ 11,000, which she itemizes as follows:
Pain and suffering
$ 3,000.00
Permanent injuries to lumbar region of
back (bilateral sacroiliac sprain);
injuries to kidneys, bladder, and
general and permanent impairment of her
health
8,000.00
On April 19, 1932, the defendant the Associated Indemnity Corporation filed an exception of no cause or right of action, which was overruled on May 7, 1932. This exception was based upon the contention that Act No. 55 of 1930, in amending Act No. 253 of 1918, does not confer the right on an injured third party to bring a direct action against the insurer without first alleging and proving insolvency.
After this exception had been overruled, the two defendants filed their answers on May 13, 1932, the attorney for the insurance company appearing and representing both defendants.
The answer of the Southern Sales Company, Inc., denies all negligence on the part of Harper, the driver of its automobile, as well as all the allegations relative to the injuries of the plaintiffs and their extent. It is specially alleged that the accident was due to the negligence of the plaintiffs in having lights on their car that were burning so brightly that they dazzled and confused the said Harper and rendered it impossible for him to avoid the collision.
The answer of the defendant Associated Indemnity Corporation was similar to that of the Southern Sales Company, Inc., but went further. It is specially denied that it ever issued to the Southern Sales Company, Inc., a policy of insurance containing a provision by which it agreed to become solidarily bound with it for claims arising from injuries sustained in accidents or collisions in connection with the operation of the car described in plaintiffs' petition. This defense is practically the same as was urged in support of its exception of no cause or right of action.
On May 26, 1932, the Associated Indemnity Corporation filed an amended and supplemental answer wherein it denied the authority of the local agent, Mayfield-Jones Insurance Agency, Inc., to issue and deliver the policy sued on, claiming that the authority of this agency had been revoked.
On that same date, May 26, 1932, Chandler & Chandler, attorneys, appeared as separate and additional counsel for the Southern Sales Company, Inc., and on June 2, 1932, these attorneys filed another appearance for the Southern Sales Company, Inc., which, in effect, is a plea of estoppel against the supplemental answer of the Associated Indemnity Corporation, in which it set up the want of authority in Mayfield-Jones Insurance Agency, Inc., to issue and deliver the policy of insurance on the truck which plaintiffs allege caused the accident.
On the issues as thus made up, a trial was had. At this trial there was judgment against the Southern Sales Company, Inc., in favor of Ernest and Mary Rambin in the sums of $ 5,780 and $ 3,000, respectively. No reference is made to the other defendant Associated Indemnity Corporation either in the minute record of the judgment or in the judgment itself. Hence, it is evident that the exception of no cause or right of action which had been previously overruled was sustained by the court at the end of the trial. While the judgment, according to the minutes, was rendered against the Southern Sales Company, Inc., when it was reduced to writing and signed in open court, it read against James S. McConathy, receiver of Southern Sales Company, Inc.
The plaintiffs have appealed from that portion of the judgment that rejects their demands against the Associated Indemnity Corporation. James S. McConathy, receiver of Southern Sales Company, Inc., has appealed and asks that the judgment be amended so as to run against the company instead of against him as receiver, and the plaintiffs have answered this appeal and ask that the judgment be increased to $ 7,786 and $ 5,000, respectively.
On the Exception of No Cause or Right of Action.
It is contended by the defendant Associated Indemnity Corporation that the plaintiffs have no right to join it in this suit without first alleging and then proving the insolvency of the insured, Southern Sales Company, Inc. The right to bring the suit as it was brought rests solely on Act No. 55 of 1930, §2 of which reads as follows:
"That Section 1 of Act 253 of 1918 be amended and re-enacted so as to read as follows:
...
To continue reading
Request your trial
-
Burkett v. Globe Indemnity Co
... ... state as it can in the courts of Louisiana ... Rambin ... v. Southern Sales Co., 145 So. 46; Bougon v ... Volunteers of ... thereto, it will be seen that the Packard New Orleans, Inc., ... is charged with negligence as creating a dangerous ... ...
-
McArthur v. Maryland Casvalts Co.
... ... 780; Bougon ... v. Volunteers of America, 151 So. 797; Rambin v ... Southern Sales Co., Inc., 145 So. 46 ... The ... legal ... ...
-
Evans v. Tin, Inc.
...action asprovided by the Act." Matter of Talbott Big Foot, Inc., 887 F.2d 611, 613 (5th Cir. 1989) (citing Rambin v. Southern Sales Co., 145 So. 46, 50 (La. Ct. App. 1932)). As a result, the Court must determine whether or not the arbitration clause is voided or annulled by the LDAS before ......
-
Talbott Big Foot, Inc., Matter of, 88-3612
...in a policy that would contravene the right of the injured party to bring a direct action as provided by the Act." Rambin v. Southern Sales Co., 145 So. 46, 50 (La.App.1932). Consistent with this view, the authors of the leading treatise on Louisiana insurance law state: "The insurer can ra......