Alma SMITH v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, 247 La. 696

SUMMERS, Justice. Plaintiff, Alma Smith, the wife of Dovic Fontenot, was injured while riding as a passenger in an automobile owned and driven by her husband when it collided with a car owned and driven by Regile Bordelon. At the time of the collision Bordelon’s vehicle was insured by Southern Farm Bureau Casualty Insurance Company. Plaintiff filed a direct action against the insurer alleging that the accident was caused by Bordelon’s negligence.

The defendant insurer filed a general denial and then, as third party plaintiff, filed a third-party demand against Dovic Fontenot, husband of the plaintiff, alleging that because of his negligent operation of the vehicle in which his wife was riding he was a joint tort-feasor; and, if the third party plaintiff was cast, it demanded contribution from Fontenot, the third party defendant, under the authority of

Article 2103 of the LSA-Civil Code. Fontenot filed an exception of no right or cause of action to the third-party demand for contribution. He then answered denying his negligence. The exception is predicated on LSA-R.S. 9:291 which grants the husband immunity from suit by the wife. Under this statute Fontenot contends that, as the husband of the injured plaintiff, he is exempt from suit by his wife in this action.

Therefore, contribution cannot be enforced against him in this case, as, in reality, it would be the same as a suit by the wife against the husband, for contribution would have the effect of forcing the husband to pay the joint tort-feasor his virile share of the damages suffered by his wife. This exception was sustained by the trial court on the ground that the husband enjoyed immunity from suit by his wife and to permit the third party demand for contribution to succeed would be, in effect, permitting a suit by the wife against the husband indirectly when it is not permitted directly.

In the main demand there was judgment in favor of the plaintiff Alma Smith and against the defendant insurer for $3,500. The husband, Dovic Fontenot, also filed a separate action against Southern Farm Bureau Casualty Insurance Company. This suit, which had been consolidated for trial with Alma Smith’s suit, was dismissed by the trial court on a finding that Fontenot was contributorily negligent, which was, in fact, a finding that Fontenot’s negligence concurred with Bordelon’s negligence to cause Alma Smith’s injuries. Fontenot was, therefore, a joint tort-feasor in the Alma Smith suit.

Appeals were taken in both suits. The Court of Appeal, Third Circuit, affirmed both decisions. See Smith v. Southern Farm Bureau Casualty Insurance Company, 164 So.2d 647 (La.App.1964) and Fontenot v. Southern Farm Bureau Casualty Insurance Company, 164 So.2d 653 (La.App.1964). Upon timely application, we granted certiorari in the former suit to review the res nova question of whether contribution can be demanded from a concurrently negligent husband in a suit by the wife against the other joint tort-feasor. See 246 La. 2S6, 167 So.2d 672 (1964).

No application for a writ of review was made in the latter case and its holding that Dovic Fontenot was contributorily negligent became a final judgment on July 1, 1964. The defendant insurer is not contesting the negligence of its insured, Bordelon, and there is no dispute concerning quantum, the only issue being the right of the principal defendant to demand contribution against the third party defendant, joint tort-feasor, husband of the principal plaintiff. The husband enjoys immunity from suit by the wife, except in certain instances not pertinent to the issue before us. LSA-R.S. 9:291.

This immunity exists, commendably, to maintain domestic tranquility and promote the stability of the family unit. Defendant insurer recognizes the husband’s immunity from suit by the wife, but asserts that this immunity has no relevancy to its demand for contribution. This is so, it is said, because under the terms of

Article 2103 of the LSA-Civil Code a solidary obligor is given a substantive right to enforce contribution against his solidary co-debtor; that as joint tort-feasor with the husband it is also a solidary obligor with him, and for this reason, the argument continues, the claim for contribution against the joint tort-feasor husband is founded on an independent, substantive cause of action between the solidary obligors. Hence, under concepts of solidary obligations, the demand for contribution may be enforced without the joinder of the injured wife.

Under these circumstances, it is asserted, the concurrently negligent husband cannot invoke interspousal immunity against the joint tort-feasor, for a bar to such a suit is not within the contemplation of the immunity statute. (LSA-R.S. 9:291). The codal

article relied upon by the defendant insurer provides: “When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation. “A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against a solidary co-debtor by making him a third party defendant in the suit, as provided in

Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.” LSA-Civ.Code art. 2103. It is quite clear to us that the joint tort-feasors in the case at bar are solidary codebtors within the meaning of the foregoing article. The general tenor of

Article 2315, creating a cause of action in favor of injured parties against those by whose fault the injury happened, makes that

article universal in its operation unless a specific exception is established by law. In view of this fundamental premise, and in the absence of an appropriate exception, it follows that a substantive cause of action would come into being in' favor of an injured wife against a negligent husband. The immunity created by LSA-R.S. 9:291 is not an exception to the creation of this substantive cause of action; it is merely a procedural bar to the wife’s right to sue the husband personally.

Thus, where the wife sustains personal injuries as a result of her husband’s negligence, it has been held that the wife has a cause of action against her husband for the damages which she sustained. This rule has been expressed in this manner: “ * * * Under

Article 2315, the tort victim has a substantive cause of action against the tort feasor, be he stranger or spouse. The cause of action is in valid existence during marriage; the injured spouse is the obligee or creditor ■of that cause of action while the spouse whose duty it is to repair the damage is the obligor or debtor; but it cannot be asserted as the law affords no appropriate remedy, or right of action, in such circumstances against the tort-feasor-spouse personally.” Dumas v. United States Fidelity & Guaranty Co., 241 La. 1096, 1116, 134 So.2d 45, 52 (1961). See also Edwards v.

Royal Indemnity Co., 182 La. 171, 161 So. 191 (1935); Addison v. Employers Mutual Liability Ins. Co. of Wisconsin, 64 So.2d 484 (La.App.1953). Primarily,

Article 2324 of the LSA-Civil Code establishes the solidary liability of the husband in this case when it declares that, “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.” That the husband “caused another person” to do an unlawful act or “assisted” in the commission of the tort involved is not open to question. He was adjudged a joint tortfeasor by virtue of his contributory negligence in a judgment which is now final.

And, as we have shown, the status of the husband as a joint tort-feasor is real and not merely nominal, for, in fact, a cause of action was created in favor of his wife by his negligent conduct. Consequently, by virtue of

Article 2324 of the LSA-Civil Code a solidary obligation between joint tort-feasors has taken place of right. See LSA-Civ. Code art. 2093. Moreover, our jurisprudence has consistently recognized that joint tortfeasors are solidarily liable. Cust v. Item Co., 200 La. 515, 8 So.2d 361 (1942); Reid v. Lowden, 192 La. 811, 189 So. 286 (1939); Jones v. Maestri, 170 La. 290, 127 So. 631 (1930); Johnson v. Legeai, 147 La. 92, 84 So. 505 (1920); Williams v. Pelican Creamery, 30 So.2d 574 (La.App.1947); Grigsby v. Morgan & Lindsey, 148 So. 506 (La.App.1933).

Therefore, at the time when the tortious conduct occurred, a legal liability or obligation was created in the husband, in solido with the other joint tort-feasor, to repair the wife’s damage caused through their concurring fault. Aside from the effects of the tortious conduct of the joint tort-feasors on injured parties, obligations between them were created and vested which are controlled by their relationship as solidary obligors. LSA-Civ.Code arts. 2091-2107.

What is implicit in this relationship of solidary obligors is the positive pronouncement that a solidary obligation should be divided between the solidary obligors. LSA-Civ.Code art. 2103. Dumas v. United States Fidelity & Guaranty Co., 241 La. 1096, 134 So.2d 45 (1961). Thus it is evident that the cause of action in favor of the wife against all joint tort-feasors, including the husband, and a solidary obligation between the joint tort-feasors comes into being at the time of the commission of the tort.

Being convinced that the joint tort-feasors are solidary obligors, we cannot reach the result for which the husband contends and deny the right to contribution allowed by

Article 2103 of the LSA-Civil Code. By this

article the law has established rights and provided for their enforcement between solidary codebtors. To accept the husband’s contention it would be necessary to disregard the plain terms of that

article giving solidary obligors independent, substantive and procedural rights to contribution from their solidary codebtors. See also LSA-Code of Civil Proc. arts. 1111 to 1116; 25 La.Law Rev. 186, 198 (1964). Moreover, in this demand for contribution by a joint tort-feasor asserting substantive and procedural rights accorded by statute against another joint tort-feasor (LSA-Civ.Code art. 2103), it will not do for this court to broaden the scope of LSA-R.S. 9:291 and permit the husband to invoke immunity from suit against parties other than his wife.

Especially when, by the very terms of the immunity statute, it applies only to suits between spouses. The indirect, adverse effect upon the marital relationship which might result from such a demand for contribution which concerned the trial court and court of appeal also concerns us, but this concern is not a basis for extending the application of LSA-R.S, 9:291 beyond its clear import —the incapacity of the wife to sue her husband for damages being purely procedural and definitely limited to a suit between spouses.

Furthermore, the husband, whose tortious conduct has helped to create the solidary obligation for which his joint tort-feasor must respond in full to the injured wife, should not be permitted to escape the consequence of his wrongdoing to parties other than his wife, such as his clear and apparent statutory obligation to divide the effects of the solidary debt by contributing to his solidary codebtor. There is no merit to the claim for damages for a frivolous appeal.

For the reasons assigned, the judgment appealed from is amended to allow the demand for contribution asserted by Southern Farm Bureau Casualty Insurance Company against Dovic Fontenot, costs to be assessed equally against said parties. In all other respects the judgment is affirmed. SANDERS, J., dissents with written reasons.