Reiley v. Atlas Construction Co.

159 So. 2d 688, 245 La. 595, 1964 La. LEXIS 2899
CourtSupreme Court of Louisiana
DecidedJanuary 20, 1964
DocketNo. 46882
StatusPublished
Cited by4 cases

This text of 159 So. 2d 688 (Reiley v. Atlas Construction Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reiley v. Atlas Construction Co., 159 So. 2d 688, 245 La. 595, 1964 La. LEXIS 2899 (La. 1964).

Opinions

SUMMERS, Justice.

Relators, Atlas Construction Company, Inc. and its liability insurer, Fireman’s Fund Insurance Company, applied to this court for writs of mandamus, certiorari and review, directed to the Nineteenth Judicial District Court for the parish of East Baton Rouge, from a judgment of that court quashing a judicial sequestration issued from the Second Judicial District Court for the parish of Jackson, under which the sum of $8,250.00 belonging to Theresa Reiley was seized in the hands of the sheriff of East Baton Rouge Parish by the coroner of East Baton Rouge Parish. We granted writs to review the correctness of the proceedings involved.

Because of the unusual aspects of this case, a detailed history of its progress to this stage is considered necessary.

Theresa Reiley, who resides outside the State of Louisiana, instituted suit on May 21, 1960, against Atlas and Fireman’s Fund in the Second Judicial District Court for the parish of Jackson to recover damages for personal injuries alleged to have been sustained in an automobile accident that occurred on June 29, 1959, in Jackson Parish. It was alleged that Theresa Reiley and Wilma Reiley were passengers in an automobile driven by Miss Joan Dacey which collided with a motor grader driven by an employee of Atlas and insured by Fireman’s Fund. Separate suits against the same defendants were also filed by Joan Dacey and Wilma Reiley for personal injuries they received. All three suits were consolidated for purposes of trial and appeal.

In defendants’ answers it was asserted that all plaintiffs had made settlements with the liability insurer of the automobile driven by Miss Dacey for the injuries received by them in the collision, and by way of exception this matter was again raised with defendants contending these settlements were made without reserving any rights against them; they were at the most only liable as joint tort-feasors with Joan Dacey; and these settlements released defendants. The trial court rejected these contentions and would not allow the introduction of evidence as to the nature of the settlements. This ruling was probably predicated upon the trial court’s finding that the accident was due solely to the negligence of the driver of the motor grader belonging to Atlas, and for that reason any release by the insurer of the automobile driven by Miss Dacey would be irrelevant and perhaps prejudicial.

The trial resulted in a judgment on February 21, 1962, in favor of Theresa Reiley against Atlas and Fireman’s Fund, in solido for $35,000 with interest and costs. Joan Dacey and Wilma Reiley also received judgments in their favor against these defendants.

An appeal was perfected by Atlas and Fireman’s Fund to the Court of Appeal, Second Circuit, in all three cases and, by judgment rendered on June 14, 1962, that court found Joan Dacey guilty of joint negligence with the driver of the motor grader belonging to Atlas. Accordingly, recovery was denied to Joan Dacey and the judgment of the trial court in that case was reversed.

In the other two suits the court of appeal found it necessary to ascertain what types of settlement were made by Wilma Reiley and Theresa Reiley with the liability insurer [690]*690of Joan Dacey. Those cases were remanded to the trial court “for the limited purpose of securing all legal evidence relative to any compromise or release” and for a decision by the trial court with that evidence before it.

Subsequently, on rehearing, by stipulation between counsel, the record was supplemented to include copies of the settlements actually made. These agreements were found by the court of appeal to include a specific reservation of plaintiffs’ rights to claim and prosecute actions for damages against any and every other party. In view of this disclosure the court observed that "No further contention has been raised with reference to this point and the issue presented must be considered as having been properly abandoned.”

Thereafter, the court proceeded to give consideration to the quantum of the award fixed by the judgment appealed from, which was not determined in its original opinion. Finding that the award made by the trial court was substantially excessive, it was reduced, insofar as Theresa Reiley was concerned, from $35,000 to $25,000. It was then decreed that costs of the trial court be taxed against defendants, Atlas and Fireman’s Fund, and costs of the appeal be taxed against Theresa Reiley.

The judgment in the Wilma Reiley case also reduced the award in her favor, but we will omit any further reference to that case for it was thereafter no longer germane to the issues. The judgments on rehearing were rendered on October 26, 1962. (See consolidated cases, Reiley v. Atlas Construction Company et al., La.App., 146 So.2d 211; Dacey v. Atlas Construction Company et al., La.App., 146 So.2d 218 and Reiley v. Atlas Construction Company, La.App., 146 So.2d 219.)

On November 21, 1962, Atlas and Fireman’s Fund, the defendants in the Theresa Reiley suit, filed a petition in the court of original jurisdiction in Jackson Parish, under the same docket number as the original suit, wherein they prayed: (1) that the amount of the costs due by them in the original suit be fixed by the court; (2) that they have judgment reducing the amount owed to their judgment creditor by the sum of $12,500;1 and, in the alternative, (3) that the amount be reduced by the sum of $7,500. This latter amount was received by Theresa Reiley in settlement with the insurer of the automobile driven by Joan Dacey who had been adjudged a joint tort-feasor with the driver of the Atlas vehicle. To this action Theresa Reiley, the judgment creditor, interposed peremptory exceptions of res judicata and no cause of action, which were overruled on February 5, 1963, and the matter was fixed for trial on March 5, 1963.

In the meantime no application for rehearing nor application for writs to the supreme court was applied for from the judgment of the Court of Appeal, Second Circuit, and that judgment became final.

After the judgment of the Second Judicial District Court rendered on February 5, 1963, and prior to March 5, 1963, counsel for Theresa Reiley filed on her behalf in the Court of Appeal, Second Circuit, an application for a writ of prohibition. This application sought a writ to prohibit any further proceedings based upon the petition filed in the Second Judicial District Court in Jackson Parish on November 21, 1962, which suit had for its object the fixing of costs incurred in the trial court and the reduction of the judgment rendered by the court of appeal on October 26, 1962.

While this application for a writ of prohibition was pending, and on February 7, 1963, pursuant to Article 2782 of the LSA-Code of Civil Procedure, Theresa Reiley filed a petition in the Nineteenth Judicial District Court for the parish of East Baton Rouge, praying that the judgment of the [691]*691Court of Appeal, Second Circuit, dated October 26, 1962, be made executory. The judgment was made executory and, accordingly, the clerk of court in East Baton Rouge Parish issued a writ on February 8, 1963, directed to the sheriff of the parish of" East Baton Rouge to seize and take into custody sufficient monies, bonds, negotiable instruments, or any funds of Fireman’s Fund Insurance Company on deposit with the Treasurer of the State and to pay same to counsel for plaintiff to satisfy the judgment rendered by the Court of Appeal, Second Circuit.

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Bluebook (online)
159 So. 2d 688, 245 La. 595, 1964 La. LEXIS 2899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reiley-v-atlas-construction-co-la-1964.