Rouley v. State Farm Mutual Automobile Insurance Co.

• Decision Date: 10 November 1964
• Docket Number: Civ. A. No. 9897.
• Citation: 235 F. Supp. 786
• Parties: Murphy ROULEY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
• Court: U.S. District Court — Western District of Louisiana

235 F. Supp. 786

Murphy ROULEY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.

Civ. A. No. 9897.

United States District Court W. D. Louisiana, Lafayette Division.

June 25, 1964.

On New Trial November 10, 1964.

Joseph A. Koury, Lafayette, La., for plaintiff.

McBride & Brewster, Wm. Harris McBride and Norman P. Foret, Lafayette, La., for defendants.

Voorhies, Labbe, Fontenot, Leonard & McGlasson, Donald Labbe and H. Lee Leonard, Lafayette, La., for third-party defendants.

PUTNAM, District Judge.

Plaintiff, Murphy Rouley, appearing as complainant for himself individually and as the representative of his minor daughter, Charlene Rouley, sues for damages allegedly caused by the negligence of defendant Hutchinson, who is a citizen of Mississippi, resulting in an automobile accident in Pointe Coupee Parish, Louisiana on August 11, 1963. State Farm Mutual Automobile Insurance Company, public liability carrier for Hutchinson, is also made a defendant under the Louisiana Direct Action Statute, LSA-R.S. 22:655.

There is diversity of citizenship and the amounts claimed are in excess of $10,000.00 for each complainant. Our jurisdiction attaches under 28 U.S.C.A. § 1332.

Charlene was a passenger in the automobile being driven by her father at the time of the accident. Defendants answered, denying negligence on the part of Hutchinson, alleging negligence on the part of Rouley and pleading his contributory negligence in the alternative. Further, they assume the position of third party plaintiffs and make Rouley and his insurance carrier, Houston Fire and Casualty Company, defendants, seeking contribution from them as debtors in solido.

We now consider the motion to dismiss for failure to state a claim filed March 5, 1964 by third party defendants. The motion is based upon the obligation of co-debtors in solido as between themselves, and the right to demand contribution as now provided by Article 2103 of the Louisiana Revised Civil Code of 1870, as amended, LSA-C.C. Art. 2103. It is complicated somewhat by the fact that in Louisiana as in most jurisdictions, the minor is prohibited from suing her parents during the marriage. LSA-R.S. 9:571.

Insofar as Murphy Rouley individually is concerned, since his negligence, if established as a proximate or contributing cause of the accident, will completely bar his recovery, we have no hesitancy in dismissing the third party petition. This is particularly true in light of the provisions of 28 U.S.C.A., F.R.Civ.P. Rule 14(a). He is a party to the action already, hence a third party petition as to him is completely unnecessary.

Moreover, the right of third party plaintiffs to claim contribution from him for the damages sustained by his minor child Charlene, on the theory that he is a joint tort feasor and as such liable with them because of the solidary character of the obligation to respond to the party injured, cannot be sustained. The parental immunity is a bar to contribution. LSA-R.S. 9:571; Johnson v. Housing Authority of New Orleans, 163 So.2d 569 (Orl.App., reh. den. May 4, 1964).

The Johnson case discusses the decision in Breaux v. T. & P. Railway Co., 147 So.2d 693 (La.App.1962) relied upon heavily by third party plaintiff, and correctly distinguishes it from the situation found to exist here. Under LSA-R. S. 9:571, the child is prohibited from suing the parent during the continuance of the marriage. In Breaux, the marriage was terminated by the death of the father, and only his succession could be made to respond to the demand for contribution. As the Court said in its original opinion:

"The exception was properly sustained. To allow the defendants herein to prosecute their demands for indemnification or contribution against the parents would in effect be investing a wrongdoer, as against the co-tortfeasor, with a greater right than the tort victim has. The parents may urge their immunity from suit against the demands of its co-tortfeasor as well as they could have urged it against any claim asserted by the child. Contribution is founded on the theory of subrogation. LSA-C.C. art. 2161 declares that subrogation takes place when a debt is paid by one who being liable with another, or for another for the payment of the debt, has an interest in paying it. Quatray v. Wicker et al., 178 La. 289, 151 So. 208 (1933)." (Emphasis by the Court, 163 So.2d 569, p. 570.)

We consider this case to correctly express the law of Louisiana. So far as we are able to determine, it is the only decision of an appellate court on this point, and we are informed that no application for writs to the Supreme Court of Louisiana has been made. It is dispositive of the issues presented by this motion as to Murphy Rouley.

Still to be decided is the motion to dismiss the third party petition by Houston. The question of whether or not the insurer of one who, but for his status of immunity from suit by the injured party because of one of the personal relationships recognized by the law of this state, would be subject to suit as a cotort feasor by the tort victim, can be called upon for contribution, has never been decided in Louisiana.

We cannot refrain from commenting here that we are reluctant to pass upon matters of first impression in the area of personal injury litigation involving, as this one does, an interpretation of the statutes and codal provisions of Louisiana. Choice of the tribunal, however, was made by plaintiff, who is a resident of this state and the question must be resolved in order that the litigation may proceed.

In the leading case of Quatray v. Wicker, 178 La. 289, 151 So. 208 (1933), the Supreme Court of Louisiana analyzed the right of debtors in solido to demand contribution under the Revised Civil Code of 1870. It was there pointed out that Articles 2103, (set out below as it read prior to 1960),¹ and 2161² governed the rights of such parties. The Court said:

"* * * Article 2103 declares that those who are liable in solido for an indebtedness to a third party are liable, each for his share of the debt, to each other. It is true that the article refers to an obligation contracted in solido; but the rules relating to obligations in solido, or joint obligations, are the same with regard to obligations arising ex delicto as with regard to obligations arising ex contractu, especially when they are fixed by a judicial decree. Loussade v. Hartman et al., 16 La. 117; Gardiner v. Erskine, 170 La. 212, 217, 127 So. 604. Article 2161 of the Civil Code declares that subrogation takes place when a debt is paid by one who, being liable with another, or for another, for the payment of the debt, has an interest in paying it." (151 So. 208, at p. 212).

Article 2103 was amended in 1960 to permit one bound in solido with another for the payment of a debt to avail himself of third party practice and assert his right to contribution when sued,³ dispensing with the requirement that he first be cast in judgment with him and make payment of the debt.

The basis for contribution under LSA-C.C. Art. 2103 is liability in solido on the part of the debtors. Because of the nature of the contractual undertaking in the writing of public liability insurance, the obligation of the insurer and the insured to pay the amount of the insured's liability in tort is solidary. Each is bound for the whole of the debt to the tort victim. Hidalgo v. Dupuy, 122 So.2d 639 (La.App.1960), Finn v. Employers' Liability Assurance Corp., 141 So.2d 852 (La.App.1962); Melancon v. Travelers Insurance Company, 209 F.Supp. 68 (W.D.La.1962).

The rule also prevails in this state that joint tort feasors are liable in solido. LSA-C.C. Art. 2324 reads as follows:

"He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act."

Consequently, were it not for the father-child relationship, Charlene Rouley would have had Murphy Rouley and his insurer, and George Hutchinson and his insurer, answerable to her in solido, and she could look to any one of the four for full payment of her damages.

Furthermore, since the injured person is made a statutory beneficiary of all liability policies issued in Louisiana and is given a right of direct action against them without the necessity of joining the insured as a party defendant to such action, LSA-R.S. 22:655, she could sue any or all of these four parties. LSA-C.C. Art. 2094.⁴

In the present situation, however, she could not sue her father because of the prohibition of LSA-R.S. 9:571, nor could he be called upon for contribution by any of the others she might sue, as we have seen. Johnson v. Housing Authority of New Orleans, supra.

In Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191 (1935), which was a suit brought by the wife against her husband's liability insurance carrier, and in Dumas v. United States Fidelity and Guaranty Co., 241 La. 1096, 134 So. 2d 45 (1961) where the suit was instituted by the husband, the Supreme Court of Louisiana held that at the moment of the commission of a tort by one spouse against the other, a substantive cause of action arises in favor of the injured spouse against the other, but by reason of our codal provisions prohibiting suits for damages by one spouse against the other, the victim had no right of action by which it could be asserted. The Court went further, however, and held that the direct action statute, LSA-R.S. 22:655, provided the vehicle for leveling the cause of action against the insurer, who was solidarily liable with the insured spouse for payment of the tort liability. Since the defense of coverture was personal to the spouse, under the explicit provisions of LSA-C.C. Art. 2098,⁵ this co-debtor in solido could not plead it in defense to the suit.

These two cases are the bulwark upon which third party plaintiffs rely to hold Houston in this litigation. They argue forcefully that the defense of the...