This is a suit for $51,110 damages for personal injuries sustained by plaintiff on July 7, 1958 when he was struck in the back by a piece of pipe protruding from a passing logging truck while he was walking over the Mississippi River Bridge at Baton Rouge. The truck was owned and operated by one Albert Blanchard but this suit is directed against Walter Marionneaux, Jr. and his public liability insurance carrier, General Accident Fire & Insurance Corp. Ltd., it being alleged by plaintiff that Blanchard was the employee of Marionneaux and engaged on a mission for the latter at the time of the accident.
Defendants denied in their answer that Blanchard was Marionneaux's employee and affirmatively alleged that he was an independent contractor. However, defendants filed a third-party complaint against Blanchard and his public liability insurer, American Fidelity & Casualty Company, contending that, should it be found that they are liable to plaintiff, then they are entitled to judgment against Blanchard and his insurer, as primary carrier, indemnifying them for whatever loss they may sustain as a result of Blanchard's negligence.
Upon being called into the case, Blanchard and his insurer filed a third-party complaint against Williams, the original plaintiff, pleading that they had compromised and settled Blanchard's liability with Williams for $4,750 and had obtained a release from him in which he acquitted and discharged them and covenanted to indemnify and save them harmless "for all claims and demands for damages, actions costs, loss of service, accidents, or compensation on account of, or in any way growing out of said accident or its results, both to person or property".
Subsequent to the assertion of the third-party complaints, Marionneaux and
The exceptions of no right or cause of action and of res judicata are founded on identical grounds. Substantially, defendants contend that plaintiff's compromise settlement with and release of Blanchard, the alleged employee, redounded to the benefit of Marionneaux whose repsonsibility for Blanchard's quasi offense was vicarious and secondary, being derived solely from an alleged employer and employee relation, and that the settlement agreement is res judicata, even as to Marionneaux, in view of Article 3078 of the Civil Code providing that "Transactions have, between the interested parties, a force equal to the authority of things adjudged. * * *".
These contentions were upheld in the district court and the Court of Appeal, both courts deducing that the exception of res judicata was well taken under the authority of Muntz v. Algiers & G. St. Ry. Co., 116 La. 236, 40 So. 688 and McKnight v. State, La.App., 68 So.2d 652 and also finding that the exception of no right or cause of action was good because the release of the alleged tortfeasor, Blanchard, effected a discharge of Marionneaux, since his liability, as master, was vicarious and secondary in nature.
In our opinion the plea of res judicata is not tenable. Article 2286 of the Civil Code provides in explicit terms that "The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality".
Here, one of the requisites for the maintenance of the plea of res judicata is lacking, i. e., the demand is not between the same parties who entered into the compromise settlement which is said to have had the force of the thing adjudged.
It is true that this court, in Muntz v. Algiers, sustained a plea of res judicata in a situation similar in principle to that appearing in the case at bar
Nonetheless, there can be no doubt of the correctness of the result reached in the Muntz and McKnight cases. The rationale of these decisions is that a plaintiff's cause of action abates against the person secondarily liable when it is shown that he has already litigated with the tortfeasor or tortfeasors and they have been held to be without fault. Accordingly, a plea in bar of judicial estoppel would have been appropriate procedurally.
On the other hand, we think the exception of no cause of action is well founded. In Louisiana, the liability of the servant for damages under Article 2315
Since Marionneaux had the right to recoup from Blanchard whatever damages he might have been obliged to pay plaintiff for injuries resulting from Blanchard's negligence while the latter was acting in furtherance of his duties as Marionneaux's employee, the question arises as to the legal effect produced by the compromise and settlement by plaintiff of his claim against Blanchard, in which he covenanted to indemnify and save Blanchard harmless for all claims and demands for damages growing out of the accident. This release, in our view, not only operated to discharge Blanchard as the party primarily responsible; it effected a complete release of Marionneaux, who was only secondarily liable. And this, despite the attempted reservation by plaintiff in the release of all of his rights against Marionneaux and his liability insurer.
There was but one cause of action which the law gave plaintiff in recompense for his injuries. That cause of action sounded exclusively in tort under Article 2315 of the Civil Code. Under Article 2320 this same cause of action for Blanchard's alleged tort was assertable against Marionneaux but it was cognizable only because Blanchard was allegedly acting in his function as an employee of Marionneaux at the time Blanchard committed the negligencet act causing plaintiff's injury. Now, when Blanchard compromised with plaintiff, he repaired his wrong and, therefore, was fully acquitted from further liability. This acquittance inured to the benefit of Marionneaux for the release of the tortfeasor must be held to release Marionneaux also from further responsibility, as his liability for the tortious act was vicarious in nature and derived solely from his legal relation to the wrongdoer.
To give legal effect to the reservation contained in the release, as plaintiff would have us do, would produce consequences of a most unseemly nature—for, if Marionneaux should be held responsible to plaintiff notwithstanding that the tortfeasor has already repaired the wrong conformably with Article 2315, Marionneaux would be entitled to reimbursement from Blanchard, as the party primarily responsible, and Blanchard, in turn, would be entitled to indemnification from plaintiff as he contractually agreed to save Blanchard and his insurer harmless for all claims and demands for damages on account of the accident.
The contention of plaintiff's counsel in this case is that the $4,750 paid by Blanchard was only partial compensation for the injuries and special damages plaintiff sustained and that he has the right to collect the remainder from Marionneaux as this right was specifically reserved in the release.
The answer to this proposition is two-fold. In the first place, plaintiff had only one cause of action, as aforesaid, for the damages sustained by him. This action for damages cannot be split into two causes of action. See Norton v. Crescent City Ice Mfg. Co., 178 La. 135, 150, 150 So. 855, 859 and P. Olivier & Sons v. Board of Com'rs, 181 La. 802, 160 So. 419.
For the foregoing reasons the judgment of the district court, as affirmed by the Court of Appeal, is reversed insofar as it maintained the exception of res judicata but, in all other respects, the judgment is affirmed at plaintiff's costs.