
    Earline Mayeux DAUZAT, Plaintiff and Appellant, v. GREAT AMERICAN INDEMNITY COMPANY et al., Defendant and Appellee.
    No. 277.
    Court of Appeal of Louisiana. Third Circuit.
    May 22, 1961.
    Rehearing Denied June 13, 1961.
    Donald Garrett, Alexandria, James N. Lee, Bunkie, for plaintiff-appellant.
    Stafford & Pitts, by Grove Stafford, Jr., Alexandria, for defendants-appellees.
    Before TATE, HOOD and CULPEP-PER, JJ.
   PIOOD, Judge.

This is an action for damages arising out of a motor vehicle accident in which plaintiff’s father, Robert Mayeux, was killed. The defendants are Iver Drouin, the owner and driver of the truck involved in the accident, and Great American Indemnity Company, the public liability and medical payments insurer of that truck.

Plaintiff demands damages for the pain and suffering of the decedent prior to his death, for the loss of the love and companionship of the decedent, and for funeral expenses incurred as a result of the accident. The trial court rendered judgment in favor of plaintiff, awarding her the sum of $3,000 for loss of love and companionship and $1,237.50 for funeral expenses, but rejecting her demands for the alleged pain .and suffering of the decedent prior to his • death. Plaintiff has appealed from that judgment, and defendants have answered ■the appeal praying that the awards be reduced.

The accident occurred about 4:00 P.M. on February 12, 1960, while the decedent was riding as a guest passenger in the Drouin truck. The driver lost control of the truck, causing it to run off the highway and overturn. Defendants admit liability, so the only questions presented here relate to the amounts which should be awarded.

' The trial judge found that the injuries sustained by the decedent caused his immediate death, and that he did not suffer any conscious pain following the accident. Accordingly, plaintiff’s demands for damages for the pain and suffering of the decedent from the time of the accident until his death were rejected.

The only evidence presented relating to the question of whether the decedent suffered pain after the accident consisted of the testimony of defendant Drouin and State Trooper Phillip J. Pizzaloto. Drouin testified that the decedent did not move or make a sound after the accident occurred, that he could not determine whether the deceased was breathing, but that he felt his pulse and thought he detected a weak pulse beat. State Trooper Pizzaloto arrived at the scene of the accident about 35 minutes after it occurred and determined that plaintiff’s father was dead at that time. In our opinion the evidence supports the finding of the trial judge that the decedent did not suffer any conscious pain after the accident occurred, and accordingly the trial court correctly rejected plaintiff’s demands for that item of damages. See Crisman v. Shreveport Belt Ry. Co., 110 La. 640, 34 So. 718, 62 L.R.A. 747; Langenstein v. Reynaud, Orleans, 13 La.App. 272, 127 So. 764; Todd v. New Amsterdam Casualty Co., La. App.Orleans, 52 So.2d 880; Andrus v. White, La.App. 1 Cir., 101 So.2d 7, reversed in part on other grounds, at 236 La. 28, 106 So.2d 705.

Plaintiff contends that the award of $3,-000 for loss of love, companionship, affection and paternal friendship should be increased materially, while defendants contend that the award was excessive and should be reduced.

The decedent was about 56.years of age at the time of the accident. He married in 1927 and plaintiff was the only child born of that union. The decedent and plaintiff’s mother were divorced in 1943, when plaintiff was 14 years of age, and the court awarded the custody of plaintiff to the mother. Thereafter plaintiff lived with her mother and her maternal grandparents until her marriage in 1945. After her marriage plaintiff lived with her husband in Marks-ville for eight years and then moved to Alexandria where she has lived since that time. The decedent has lived in Hessmer, Louisiana, during that entire period.

At the time of the accident plaintiff was 31 years of age. She has not lived with her father since she was 14 years old. She has been married for 15 years and is the mother of three children. The evidence shows, however, that the decedent has visited with plaintiff frequently since 1943. While plaintiff was living in Marksville the decedent visited her almost daily. For a period of time after she moved to Alexandria he visited with her once or twice a week, but during the last few years he visited her only once or twice a month. The decedent appeared to love plaintiff’s children and he frequently brought them little gifts.

The trial court relied on the cases of Seelhorst v. Pontchartrain Railway Co., Orleans, 11 La.App. 586, 123 So. 626, 629, and Serpas v. Collard Motors, La.App. Orl., 178 So. 261, in determining that plaintiff should be awarded the sum of $3,000 for the loss of love and companionship. In the Seelhorst case, which was decided in 1929, five major children were awarded a total of $6,000 for the wrongful death of their mother, which award also included amounts due for pain and suffering of the decedent. In that case the court said:

“The record shows that the deceased was 68 years of age and in good health. She was a kind and loving mother, living happily with some of her children in the old family residence in this city. The children are majors, and were not dependent upon her for support, but have been deprived of her association and companionship. The deceased suffered excruciating pains as a result of her fatal injuries, and was conscious from immediately after the accident and until a short while before her death at Charity Hospital on the same day, * * *. Under the circumstances we feel that the sum of $6,000 should be awarded plaintiffs.”

In the Serpas case, decided in 1938, six major children were awarded the aggregate sum of $6,000 for the wrongful death of their 73 year old mother, which award also included amounts for pain and suffering of the decedent.

We do not consider the case of Palmer v. American General Insurance Co., La.App. 1 Cir., 126 So.2d 777, cited by counsel for plaintiff, to be applicable here, because in that case the award was made to a mother for the loss of love, companionship and affection of her IS year old daughter, who lived with her mother.

We are aware, of course, that the Seelhorst and Serpas cases were decided a number of years ago, and we take judicial cognizance of the fact that there has been a substantial decrease in the value of the dollar since that time. We also note, on the other hand, that the judgments rendered in those cases included awards for pain and suffering of the decedent between the time of the accident arid the time of his death, while in the instant suit no such award can be made since we have concluded that the decedent did not regain consciousness after the accident. The award made to plaintiff by the trial court in this case is substantially more than the amount awarded to each child in either of the above cited cases. After considering all of the circumstances presented here, therefore, we conclude that the amount awarded to plaintiff by the trial court for the loss of the love, companionship, affection and paternal friendship of the decedent was fair and adequate.

Defendants contend that the trial judge erred in awarding plaintiff the sum of $1,-237.50 for funeral expenses. The evidence shows that the following expenses were incurred in connection with the death and interment of the decedent:

Hixson Funeral Home, $892.50
Escude Funeral Homes, 125.00
Louis Gagnard, Vault, 120.00
A. Normand, Monument, 100.00

Great American Indemnity Company paid the amounts due the Hixson and Escude Funeral Plomes, amounting to the aggregate sum of $1,017.50, and plaintiff paid the remaining bills amounting to $220. The payments made by Great American Indemnity Company were made under the “Medical Payments” clause of the policy covering the truck in which the decedent was riding, which clause obligated the insurer “to pay all reasonable expenses incurred * * * for necessary * * * funeral expenses.”

Plaintiff contends that she is entitled to recover the full amount of these funeral expenses under the public liability features of the policy, even though a substantial portion of them have already been paid by the insurer. She relies on the decisions rendered in Distefano v. Delta Fire & Casualty Co., La.App. 1 Cir., 98 So.2d 310, and Bordelon v. Great American Indemnity Co., La.App. 3 Cir., 124 So.2d 634. Although the author of this opinion disagrees with the opinions expressed in those two cases, a majority of this court has held that such a double recovery can he had in a proper case, and that is now the settled jurisprudence of this court. See also Dumas v. United States Fidelity and Guaranty Company, La.App. 3 Cir., 125 So.2d 12; and Martin v. United States Fire Insurance Co., La.App. 3 Cir., 129 So.2d 277.

In the instant suit, plaintiff testified that her father’s body was at the funeral home when she first learned of his death, and that she “got there and made the arrangements for the funeral.” She also testified, however, that she did not pay the amounts due the Hixson and Escude funeral homes for the funeral services rendered by them, and that she never received a bill from either of these establishments for those services. The record shows that the statement submitted by Hixson Brothers is addressed to “Mr. Robert Mayeaux Estate,” and no statement from either of said funeral homes is addressed to plaintiff. In our opinion, plaintiff has failed to establish that she obligated herself personally to pay these accounts.

In Andrus v. White, 236 La. 28, 106 So.2d 705, 706, the Supreme Court held that a minor child, through his tutrix, could not recover hospital and funeral expenses incurred in connection with the accidental injury and death of his father, because there was no legal liability on the part of the minor to pay them. In so holding, the court said:

“We realize, of course, that there are numerous cases in which the ranking beneficiary under Article 2315 should be allowed to recover the amount of hospital and funeral bills. Some examples where recovery should be permitted are: Where the succession of the deceased has paid these bills with a resultant reduction in the inheritance of the ranking beneficiary; where the ranking beneficiary is legally obligated to pay these bills (as in the case of a parent who has lost his minor child), or has actually paid them either because of a legal liability on him to do so or even because of a moral or natural obligation.
“In the instant case there is no legal liability on the minor to pay these bills, nor has he paid them or incurred any liability for their payment. Moreover, the succession of his deceased father has not paid them, nor is there any evidence of any charge or demand against the father’s succession for the payment of the amount of these bills. Under these circumstances there is no conclusion that we can reach except that the minor child here has not suffered any loss or been damaged in any way in the amount of these bills, and for this reason recovery should not be permitted.”

In the instant case there is no legal liability on the part of plaintiff to pay the funeral expenses of her deceased father. She has not paid those expenses, they have not been paid with funds belonging to the succession with a resultant reduction in plaintiff’s inheritance, and no further demand for payment can be made against the decedent’s succession since the debts have been paid. In view of those facts and the holding in Andrus v. White, supra, therefore, we conclude that plaintiff, as the survivor under Article 2315 of the LSA-Civil Code, is not entitled to recover for the funeral expenses due the Hixson and Escude Funeral Homes.

Plaintiff, however, has actually paid the amounts due Gagnard and Normand, amounting to the sum of $220, and consistent with the above cited jurisprudence she is entitled in this wrongful death, action to recover from the defendants the amount which she paid.

For the reasons herein expressed, the judgment of the trial court is amended by-reducing the amount of that judgment from $4,237.50 to the sum of $3,220. In all other respects the judgment is affirmed. All costs of this appeal are assessed to appellant.

Amended and affirmed.

TATE, Judge

(dissenting).

The writer respectfully dissents from the majority’s holding insofar as the decedent’s only child was not permitted to recover the full amount incurred by her for the decedent’s funeral expenses. The majority of this panel, in refusing to allow the decedent’s child to recover this full amount, improperly (in my opinion) allowed the tortfeasor and his insurer credit for the amount of funeral expenses paid under a separate coverage provided by the “medical payments clause” of the policy, in which the insurer obligates itself contractually to pay reasonable medical or funeral expenses “to or for each person who sustains bodily injury”, in addition to its obligation to pay for any tort damages for which the insured is liable.

The majority opinion pays lip service to the general rule that the medical and funeral payments clause, for which a separate and additional premium is charged, is a separate accident insurance coverage, so that the beneficiary is entitled to be paid the medical and funeral expenses incurred irrespective of whether there has been a tort recovery also for such expenses, and so that, likewise, the tortfeasor or his liability insurer is not entitled to credit against a tort recovery for amounts collected under the medical payments clause. See Martin, Dumas, Bordelon and Distefano cases, cited in the majority opinion; see also Severson v. Milwaukee Automobile Insurance Company, 265 Wis. 488, 41 N. W.2d 872, 42 A.L.R.2d 976, and annotation following this decision, 42 A.L.R.2d 984.

The insurer’s agreement to pay medical or funeral expenses for an injured person, even though the premiums are paid by another, is nevertheless a stipulation for the benefit of the injured person and constitutes an enforceable contractual right in favor of the injured person or his beneficiary. See Cummings v. Albert, La.App. 1 Cir., 86 So.2d 727, as well as above cited cases. The well settled general rule is that the tortfeasor is never entitled to credit for medical expense or other benefits paid for by insurance obtained in behalf of the injured person. See DeRoode v. Jahncke Service, Inc., La.App.Orleans, 52 So.2d 736; 25 C.J.S. Damages § 99, p. 647.

Undoubtedly, it may offend one’s sense of what the contract rights should be if the same person collects the same funeral expenses twice, once under the medical payments coverage and then again under the tort coverage. Likewise, in another context, one may feel there is something wrong about an insured person collecting' dual or triple benefits for the same medical expense in situations where the insured maintains two or three ordinary hospitalization policies.

But the answer to any moral doubts one may have about such dual collections of benefits is the same: the insurers concerned may vary this result very easily by excluding multiple recoveries and charging a lower premium, failing which they must pay the full amounts for which liable by the contracts they drew up and offered for sale. It is not for the courts to re-write insur-. anee policies and to exclude damages and risks which the insurers themselves did not see fit to exclude from coverage, and for insuring which they charged and collected full premiums.

With due respect to my able brethren of this panel’s majority, I think that their decision flouts the well settled law concerning this subject, in the light of which the present insurance contract was drawn and based upon which jurisprudence the premiums were fixed.

The majority disallows a full recovery of funeral expenses upon the authority of Andrus v. White, 236 La. 28, 106 So.2d 705. The holding of that case is totally inapplicable, in my opinion, to the facts of the present case.

In the Andrus case, a 4-year-old boy was not allowed to recover his father’s funeral expense, where his grandfather had paid them gratuitously, because it was not shown that such infant 'had incurred any liability' for their payment, nor had suffered any -loss such as through a reduction in his inheritance.

This is not the situation before us now. The present is a suit by a major, the only child of a decedent who was survived by no widow or any other person who could he responsible for the funeral expenses. The record reflects that the plaintiff child testified without contradiction that, after her father was killed, “he was at the funeral home, and I got there and made the arrangements for the funeral.” Now what does “making the arrangements for the funeral” mean, except that she ordered the size casket, determined the costs of the service, etc.?

We must remember that Great American’s policy did not render it directly liable to arrange for and order the funeral, but merely to pay such reasonable funeral expenses as were incurred for the injured person. If Great American had become insolvent, is there a doubt but that the funeral home could have sued the daughter, the plaintiff herein, and have recovered for the amount of the funeral which she (not Great American) selected and ordered? Great American did not pay for the funeral, really — it paid for the obligation that the decedent’s representative had incurred for such liability. The plaintiff could not have defended any action against her by the funeral home by claiming that the funeral expense was Great American’s debt, not hers-

I suppose that the majority will concede, since it is accepting the premise of the Dis-tefano and other cases that the medical payments clause constitutes a separate contractual obligation additional to the liability for tort damages, that the plaintiff could have recovered the funeral expenses in the present tort action, if only she had been billed for same and had delayed submitting to the insurer her claim under the medical payments clause for the funeral expense until after she had finally recovered them in this tort action. (Had she done this, undoubtedly she could also, under the uniform jurisprudence, been able then to sue the insurer and recover these funeral expenses under the latter’s separate contractual obligation to pay under the medical payments clause, even though they had already been paid in the tort action. See the Severson case, above cited, and the annotation following same.)

Thus, in my humble opinion, the majority has adopted an artificial rule, one that fixes liability based upon the order of the procedural steps taken and not upon the contract by which the parties’ rights should be governed, a rule which has the further demerit of complicating the present commonsense routine of administering the medical payments clause in actual everyday life.

For we are, after all, depriving this plaintiff of one thousand dollars of funeral expenses for which the defendant tort¿ feasor is unquestionably liable, simply because the plaintiff did not first file her tort suit and wait to collect her funeral expenses under the medical payment clause until after the tort suit was over; or because in the hours following her father’s death she did not go to a lawyer to draw up a formal instrument stating that she — who ordered her father’s funeral and made other arrangements for it — was the one primarily responsible for it, and that the insurance company was merely reimbursing or paying her liability for it; or because she did not pay the funeral expenses herself and collect them in this tort suit, but also have her father’s estate opened and its administrator make application for and collect the funeral expenses from the insurer under its undoubted contractual liability to pay such amount to the decedent’s estate (whether or not the daughter paid them), and thus in due course have received a disbursement of such proceeds from her father’s estate by inheritance in addition to her recovery of them in tort; or because she did not have her father’s estate opened and an administrator qualified, who would make formal application to the insurer for the amount of the funeral expense for which it was contractually liable, and then proving her damage in the present proceedings because her father’s estate — represented almost in full by its contractual right to recover one thousand dollars of such expenses — was diminished and the plaintiff was thereby damaged, because these proceeds which would otherwise have gone to her as his only child and sole heir were paid instead to the funeral home because of the tortfeasor’s fault in causing his death.

I think it is extremely unrealistic and an unwarrantedly technical construction of tort principles to require such roundabout behaviour to collect the dual liabilities — in tort and in contract — which, by separate contracts and for separate premiums, the insurer plainly assumed with regard to each person injured. With some regret, I must frankly state that such a construction does violence not only to the jurisprudence but to common sense.

For the foregoing reasons, I must respectfully dissent in part from the majority opinion.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, J., dissents. 
      
      . See 106 So.2d 706-707: “We realize of course, that there are numerous cases in which the ranking beneficiary under Article 2315 should be allowed to recover the amount of hospital and funeral bills. Some examples where recovery should be permitted are: Where the succession of the deceased has paid these bills with a resultant reduction in the inheritance ■ of the ranking beneficiary; where the ranking beneficiary is legally obligated to pay these bills (as in the case of a parent who has' lost his minor child), or has actually paid them either because of a legal liability on him to do so or even because of a moral or natural obligation. '
      “In the instant case there is no legal liability on the minor to pay these bills, nor has he paid them or incurred any liability for their payment.”
      It seems to me that by this obiter the Supreme Court was attempting to avoid the misinterpretation of its holding in the Andrus case as applying to situations such as the present, where the beneficiary heir is primarily responsible and liable for the payment of the. funeral expenses. After all, LSA-Civil Code Article 2315 does not provide that a tortfeasor is liable for all damages he causes except funeral expenses.
     