American Home Assur. Co. v. Czarniecki, s. 49610

• Decision Date: 15 December 1969
• Docket Number: 49612,Nos. 49610,49614,s. 49610
• Citation: 255 La. 251,230 So.2d 253
• Parties: AMERICAN HOME ASSURANCE COMPANY et al. v. M. J. CZARNIECKI, Individually and as Administrator of the Estate of his Unemancipated minor son, Charley A. Czarniecki, et al.
• Court: Louisiana Supreme Court

Page 253

230 So.2d 253

255 La. 251

AMERICAN HOME ASSURANCE COMPANY et al. v. M. J. CZARNIECKI, Individually and as Administrator of the Estate of his Unemancipated minor son, Charley A Czarniecki, et al.

Nos. 49610, 49612, 49614.

Supreme Court of Louisiana.

Dec. 15, 1969.

Rehearing Denied Jan. 20, 1970.

Robert E. Eatman, Shreveport, petitioners in No. 49,610 and respondents in No. 49,612.

Pike Hall, Jr., of Wilkinson, Woods, Carmody, Meadows & Hall, Shreveport, for defendant-appellant and third party plaintiff.

Richard Switzer, of Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for Aetna Ins. Co.

DeWitt T. Methvin, Jr., of Gist, Methvin & Trimble, Alexandria, for State Farm Mutual Ins. Co.

SUMMERS, Justice.

Tri-Wheel, Inc., d/b/a Econo-Car of Shreveport, is the owner of a 1966 Valiant Sedan, which was under lease to Edwin Guillory on April 22, 1966. On that date, while being driven by Mrs. Guillory, the Valiant was involved in a collision with a 1957 Chevrolet driven by Charley A. Czarniecki, the minor son of M. J. Czarniecki. Tri-Wheel, Inc., and its collision insurer, American Home Assurance Company, Inc., instituted this suit against M. J. Czarniecki, individually and as administrator of the estate of his unemancipated sixteen year old son, Charley A. Czarniecki, for damage to the automobile and for loss of its use, allegedly due to the negligent operation of the Chevrolet by Charley A. Czarniecki.

Czarniecki answered denying Charley's negligence and alleged the contributory negligence of Mrs. Guillory; he also filed a third party petition making State Farm Mutual Automobile Insurance Company the liability insurer of the Chevrolet, and Aetna Insurance Company, his own automobile liability insurer, third party defendants. In the third party petition he prayed for judgment in solido against State Farm and Aetna for the amount of any judgment rendered against him, together with attorneys fees because of their failure to defend him in this suit. Thereafter, in a supplemental petition, plaintiffs joined State Farm and Aetna as defendants.

In their answers State Farm alleged that their policy which was issued to Jesse G. Waters, the registered owner of the Chevrolet, did not cover Czarniecki or his son. Aetna alleged in their answers that the provisions of the policy issued by them to Czarniecki did not cover Czarniecki or his son under the facts of this case; and, furthermore, their policy was only excess over that of State Farm. The limits of the State Farm policy insuring the Valiant belonging to Tri-Wheel, Inc., Aetna alleged, was sufficient to satisfy all claims asserted as a result of the collision. Both insurers pleaded the contributory negligence of Mrs. Guillory, the driver of the Valiant.

A motion for summary judgment filed by State Farm, based primarily upon the failure of Czarniecki to allege that Charley was driving the Chevrolet with the permission of the owner, was denied, and the case was tried on the merits. The District Court gave judgment for plaintiffs against Czarniecki, Charley and State Farm, in solido. Judgment was also rendered in favor of Czarniecki and against State Farm for attorneys fees. All claims against Aetna were rejected. On appeal to the Second Circuit, except for reducing the award of attorneys fees, the judgment of the District Court was affirmed. 216 So.2d 115.

State Farm, American Home and Czarniecki acting individually and for the minor, applied for certiorari and we granted writs to review the judgment of the Court of Appeal. 253 La. 307, 217 So.2d 408.

The Chevrolet automobile in question was registered in the name of Jesse G. Waters, the stepfather of seventeen year old Randy Carroll. Randy, however, had purchased the automobile with his own funds. And all the expense of operating and maintaining the automobile was borne by Randy with money which he earned. He had free use of the automobile and used it regularly to go to work and to school. When the automobile needed repairs, Randy and his friend Hans Gerteis used the latter's father's auto repair shop where they made the repairs together on Saturdays when the stop was not busy.

Hans and Charley Czarniecki, who were friends and schoolmates at Jesuit High, planned to double date and to attend the auto races at the Fairgrounds in Shreveport on the evening of April 22, 1966. Shortly before the appointed time, Hans' automobile was found to be out of order. So Hans went to Griff's Burger Bar where Randy worked and asked him if he could borrow the Chevrolet. He told Randy he wanted the car to take his mother shopping and to go to the auto races at the Fairgrounds on a double date, not mentioning who would go with him. Randy loaned him the car for this purpose with the understanding that he would return the car before twelve o'clock that night because Randy got off work at one.

In keeping with this plan, Hans took his mother shopping, returned home, changed clothes, picked up Charley and their dates and proceeded to the race track. Upon arrival they learned that the events were cancelled on account of rain. Friends they met there from Byrd High invited them to a party in the Western Hills neighborhood several miles away. They went along and joined the party there. While at the party Charley told Hans his date had to go home early. And, since Hans' date could stay longer, Hans loaned the Chevrolet to Charley to take his date home. After this was done, Charley was to rejoin Hans.

It had been raining that night and the streets were wet. On his return trip to the party in Western Hills, Charley approached the intersection of Jewella Road traveling West on Greenwood Road. As he approached the intersection the traffic signal light controlling traffic on Greenwood Road changed to red, and Charley applied his brakes. But due to the fact that he was traveling forty miles per hour and the street surface was wet, his automobile slid into the intersection and collided with the Valiant being driven by Mrs. Guillory.

Just prior to the collision, Mrs. Guillory was proceeding along Jewella Road in a northerly direction. She stopped at the intersection of Jewella and Greenwood Roads on a red light. When the light changed to green she proceeded into the intersection, and when she had traversed the midpoint she was struck by the Chevrolet being driven by Charley.

Although the record indicates that Mrs. Guillory did not observe the approaching Chevrolet because her attention was focused upon the street ahead, her failure to do so was not negligence or a proximate cause of the collision.

(T)he rule is established in this State that a motorist traveling on a favored street, and, a fortiori, on a street controlled by electric semaphore lights, is entitled to assume that drivers on the less favored street, and particularly traffic facing a red light, will obey the law and respect his right-of-way. Indeed, it is now well settled that it is only in exceptional circumstances, where the motorist on the favored street could have avoided the accident by the exercise of the slightest sort of observation and care, that he will be found derelict. * * * Bourgeois v. Francois, 245 La. 875, 883, 161 So.2d 750, 753 (1964).

Both the trial court and Court of Appeal found that the collision was due to the negligence and want of care of Charley and that Mrs. Guillory was not contributorily negligent. We agree with this finding. Accordingly, plaintiffs are entitled to recover against M. J. Czarniecki and his son Charley in solido for damage to the Valiant. The liability of State Farm and Aetna, however, is the principal issue.

State Farm defends against the contention that it is liable under the omnibus clause of its policy and denies that Charley was driving the Chevrolet with the implied permission of the owner. Its counsel point to the pertinent language of the policy issued by them to Jesse G. Waters, defining those who are 'insured' and entitled to policy coverage. The policy provides:

Persons insured. The following are insured under Part I:

(A) With respect to the owned automobile,

(1) the named insured and any resident of the same household,

(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other use thereof is within the scope of such permission, and * * *

Although Jesse G. Waters was the named insured, the permission and authority delegated by him to Randy for the use of the car was so broad and so free of restrictions that it may safely be said that Waters delegated to Randy whatever authority he had to grant permission to others to drive the car. This circumstance, together with the uncontested fact that the automobile was paid for by Randy and the cost of its maintenance and operation was entirely borne by him from his earnings, places Randy in the position of the named insured clothed with all of his authority and rights under the policy.

Randy, then, was fully authorized to use the car as his own. This permission carried with it the right to grant permission to others to drive and use the car. When Randy loaned the car to Hans Gerteis, therefore, the operation of the car by Gerteis was, in legal contemplation, 'with the permission of the named insured'; and, since he represented that the car would be used to take his mother shopping and to go to the Fairgrounds on a double date, the use of the automobile was, certainly to that extent, 'within the scope of such permission'.

We do not feel, and it is not seriously urged, that when Hans drove to the Western Hills neighborhood some distance away from the Fairgrounds to attend a party he went beyond the scope of the permission he had and deviated, in legal contemplation, from the use he represented to Randy that he would make of the car. This change in plans did not remove him from the definition of a person 'insured' within the policy provision; nor did it mean that he...