Ruiz v. Clancy
| Decision Date | 01 July 1935 |
| Docket Number | 33284 |
| Citation | 162 So. 734,182 La. 935 |
| Court | Louisiana Supreme Court |
| Parties | RUIZ v. CLANCY et al |
Rehearing Denied July 18, 1935
Judgment affirmed in part and reversed in part and case remanded.
S. T Cristina, G. E. Konrad, and H. W. & H. M. Robinson, all of New Orleans, for applicant.
John May, of New Orleans, for respondents.
OPINION
O'NIELL, Chief Justice.
The district court dismissed this suit on an exception of no cause or right of action, and the judgment was affirmed by the Court of Appeal. The suit is for damages for the death of the plaintiffs' mother, Mrs. Christopher Lochbaum, who died of injuries suffered in an accident, while she was riding in an automobile, as one of several guests of her husband, who was driving the car. The plaintiffs are the two minor children of Mr. and Mrs. Lochbaum, represented by their tutrix, Mrs. Arthur Ruiz. She alleges that Christopher Lochbaum, father of the children, also is dead. We infer from the circumstances of the case -- although it is not alleged -- that both Mr. and Mrs. Lochbaum died of injuries suffered in the same accident. It is alleged that Lochbaum negligently ran into the rear end of a truck that was parked on the side of the road, his negligence consisting of his failure to see the truck.
The suit was brought against three parties, namely, (1) Frank J. Clancy, who is sheriff of Jefferson parish, and who owned the automobile; (2) the administrator of the succession of Christopher Lochbaum, who was a deputy sheriff under Clancy at the time when Lochbaum was driving the ill fated automobile; and (3) the Travelers Insurance Company, insurer of Clancy against liability for damages because of bodily injury, including death, accidentally sustained by any person or persons and caused by the ownership, maintenance, or use of the automobile.
The liability of the insurer is limited, by the terms of the policy, to $ 25,000 for all damages arising out of bodily injuries or death of one person, and, subject to that limitation, is limited to $ 50,000 for all damages arising out of bodily injuries or death of two or more persons in any one accident. The so-called coverage, or liability of the insurer, is to pay, on behalf of the assured, all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury, including death at any time resulting therefrom, accidentally sustained by any person or persons and caused by the ownership, maintenance, or use of the automobile. It is stipulated in the policy that the unqualified word "assured," wherever it is used in or is applicable to the coverage of liability for bodily injury, includes not only the named assured (Frank J. Clancy) but also any other person while legally using the automobile, or legally responsible for the use thereof, provided the disclosed and actual use be for "Pleasure and Business," as defined in the policy, and provided that such use be with the permission of the named assured.
The policy is said to be subject to the condition that no recovery against the company shall be had until the amount of the assured's obligation to pay shall have been finally determined, either by judgment against the assured after actual trial, or by written agreement of the assured and the claimant and the company. This stipulation, however, must yield to the provisions of Act No. 55, of 1930, which allows an injured person to bring suit against the liability insurer without making the insured a party to the suit. In fact, one of the conditions stated in the policy is that any specific statutory provision in force in the state in which it is claimed that the insured is liable for any such loss as is covered by the policy shall supersede any provision in the policy inconsistent therewith.
The plaintiffs are claiming only the damages which they, the minor children of Mrs. Lochbaum, have suffered by the loss of the companionship and care and affection of their mother, and for the grief which the sudden death of their mother brought upon them. There is no claim for damages for sufferings endured by the mother, as to which a right of action might have survived in favor of her minor children, under the provisions of Act No. 223 of 1855, amending article 2315, which was then article 2294 of the Civil Code. The damages here claimed are only the damages for which a right of action was given by the amendment of article 2315 of the Civil Code, by Act No. 71 of 1884, to "the survivors above mentioned," in Act No. 223 of 1855, being originally only the minor children or widow of the deceased, or either of them, but now including other relations, by virtue of the amendments made by Act No. 120 of 1908 and Act No. 159 of 1918.
Act No. 55 of 1930, amending and re-enacting the title and the first section of Act No. 253 of 1918, declares that it shall be illegal for any company to issue any policy "against liability" unless it contains a provision to the effect that the insolvency or bankruptcy of the assured shall not release the company from the payment of damages for injury sustained or loss occasioned during the life of the policy; and the statute provides that the injured person or his heirs, at their option, shall have a right of direct action against the insurer, within the terms and limits of the policy, either in the parish where the accident or injury occurred or in the parish where the assured has his domicile, and that the action may be brought either against the insurer alone or against both the assured and the insurer, jointly and in solido. The statute provides further that nothing contained therein shall be construed to affect the provisions of the policy contract if they are not in violation of the laws of the state; and the statute declares that its intent is that any action brought thereunder shall be subject to all of the lawful conditions of the policy contract, and be subject to the defenses which could be urged by the insurer to a direct action brought by the insured, meaning, of course, an action brought by the insured against the insurer to recover for a liability for which the insured was judicially compelled to pay for an injury sustained by a third party. The statute does not purport to interfere with the right of an insurance company to limit the so-called coverage, "in any policy against liability," to "liability imposed upon him [the assured] by law," as this policy provides. An insurance company therefore, may -- as the company did in this instance -- limit the coverage, or liability of the company, to the obligation to pay only such sums as the insured shall become obligated to pay by reason of the liability imposed upon him by law. The attorney for the insurance company contends that the statute would interfere with the freedom of parties to enter into contracts, and would be therefore unconstitutional, if it forbade insurers to limit their so-called coverage, in liability insurance policies, so as to cover only the legal liability of the insured. The statute does not purport to do that, by merely giving to an injured person a right of action against the insurer, and by compelling the insurer to respond -- within the limits of the policy -- to the obligation of the insured.
It is virtually conceded, therefore, that the minor children of Mrs. Lochbaum have no cause or right of action against the insurance company unless they have a cause of action against either Clancy or the administrator of the succession of Lochbaum.
The plaintiffs have no cause of action against Clancy. They claim a cause of action against him under the law of master and servant, and the doctrine of respondeat superior. It is alleged that Lochbaum, in driving the automobile, at the time of the accident, was acting within the scope of his employment, as deputy sheriff and as an employe of Clancy, and with Clancy's knowledge and consent. But it is alleged also that Mrs. Lochbaum was in the car as one of several guests of her husband. Hence she was not in the custody of the deputy sheriff, officially, or being escorted somewhere to serve as a witness or juror, or to have part in any matter in which the office of the sheriff might have been concerned. It is not even alleged that Mrs. Lochbaum's being in the automobile was with the consent or knowledge of Clancy. The employer of the driver of an automobile is not liable for damages for the accidental injuring or killing of a person whom the driver has invited to ride with him, and who while so riding as his guest is injured or killed in an accident caused by negligence on the part of the driver, in a case where the guest's riding in the automobile was without the consent or knowledge of the employer of the driver, and was not within the scope of, or in any way connected with, the employment of the driver. It was so decided by the Court of Appeal for the Second Circuit, in Jefferson v. King, 12 La.App. 249, 124 So. 589, and the ruling was affirmed by this court by the denial of a writ of review, on the ground that the judgment was correct.
It is argued on behalf of the insurance company that the plaintiffs have no cause or right of action against the succession of the deceased Lochbaum because it is against public policy for a child to sue his father for damages for an alleged tort, and because it is declared in article 104 of the Code of Practice that children under parental authority shall not bring suit against their parents. The article of the Code of Practice declares:
"Children, as long as they are subjected to paternal power, that is to say, while their fathers and mothers are living and they not emancipated, can not bring suit against them."
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