Texas Mut. Ins. Co. v. Stutes
| Decision Date | 30 December 1955 |
| Docket Number | No. 4118,4118 |
| Citation | 84 So.2d 621 |
| Parties | TEXAS MUTUAL INS. CO. v. Dallas STUTES. |
| Court | Court of Appeal of Louisiana — District of US |
Voorhies & Labbe, Lafayette, for appellant.
Mouton & Mouton, Lafayette, for appellee.
Plaintiff bases its case upon a subrogation clause in one of its policies and seeks to recover a subrogation claim against Dallas Stutes arising out of an automobile accident.
The defendant had borrowed the vehicle of Mr. and Mrs. Lewis A. Domingue, and while driving to work in it the vehicle was badly damaged in an accident. When amicable settlement was not possible, suit was filed by Mr. and Mrs. Domingue against Texas Mutual Insurance Co., which filed answer and made a legal tender by depositing $1,264.37 with the Clerk of Court. When the Taxes Mutual Insurance Company became insolvent, Domingue accepted the legal tender. A judgment in the amount of $3,095.84 was secured against the insurance company after the instant suit had been filed. Under the aforementioned subrogation clause the Texas Mutual Insurance Company became subrogated to all the rights of its insured, Lewis A. Domingue, against the driver, Dallas Stutes, and accordingly filed the instant suit to recover from Dallas Stutes, who had allegedly caused the accident by his negligence, the amount of the legal tender which had been accepted by Lewis A. Domingue.
Upon plaintiff being placed in receivership, the Court recognized the receiver, Will G. Knox, as party plaintiff. Judgment was rendered in favor of the defendant in the trial court and the plaintiff appealed. Defendant filed a motion to dismiss the appeal on the grounds that Will G. Knox had actually resigned his position as receiver for the plaintiff company prior to the trial on the merits and J. D. Wheeler had succeeded him as receiver. Therefore, the defendant urged that no proper party plaintiff was before the court. The court of appeal sustained defendant's motion and remanded the case so that J. D. Wheeler might be joined as party plaintiff, and the case was once again submitted for trial on the merits. The lower court again gave judgment in favor of the defendant and the plaintiff now appeals from this judgment.
The facts seem to be fairly clear and undisputed. Several weeks before the accident the defendant bought an automobile from Lewis A. Domingue, the Hudson dealer in Lafayette, La., and when the new automobile was brought in for repairs and a general check-up, the repairs were not completed before the defendant had to return to his work at the Rigoletts. Therefore, Mr. Domingue lent his own automobile to the defendant free of charge, until the repairs should be completed. The defendant was driving to work alone after daylight on the two-lane concrete highway leading from New Orleans to the Mississippi Gulf Coast. There were no other automobiles in sight and having just negotiated a slight curve he was approaching a draw bridge, when suddenly his right front wheel ran off the pavement. The shoulder was narrow and the defendant became frightened of the expanse of water to his right and the presence of large pieces of concrete on the shoulder which had been placed there to protect the roadbed from the tides. He jerked the wheel back onto the highway with such force that the car was thrown sideways and skidded to the other side of the road where it somersaulted twice and came to rest near the water at the base of the roadbed.
The defendant testified on cross-examination as follows:
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