Aegis Ins. Co. v. Delta Fire & Cas. Co.

• Decision Date: 23 December 1957
• Docket Number: No. 4500,4500
• Citation: 99 So.2d 767
• Parties: AEGIS INSURANCE COMPANY v. DELTA FIRE & CASUALTY COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 767

99 So.2d 767

AEGIS INSURANCE COMPANY v. DELTA FIRE & CASUALTY COMPANY et al.

No. 4500.

Court of Appeal of Louisiana, First Circuit.

Dec. 23, 1957.

Rehearing Denied Feb. 3, 1958.

Writ of Certiorari Granted March 17, 1958.

Watson, Blanche, Fridge, Wilson, Posner & Thibaut, David W. Robinson, Baton Rouge, for appellant.

Percy J. Landry, Jr., Baton Rouge, for appellees.

ELLIS, Judge.

Robert D. Whitacre, a resident of the state of Minnesota, was the owner of a 1951 Ford Custom Victoria Sedan which was stolen from him in that state on Feb. 2, 1954 and which was insured by the plaintiff company, which on April 21, 1954, paid the said Whitacre $1,072.50, under the terms of the policy insurance loss by theft.

On Feb. 14, 1954, the thief was driving the stolen Ford north on U.S. Highway 61 in St. Charles Parish, Louisiana and the defendant Entrikin was driving his DeSoto Sedan south on the same highway at about 12:30 A.M. when as the result of the admitted negligence of the latter a collision occurred between the two automobiles which completely demolished the stolen Ford. Two days later on Feb. 16, 1954, the defendant insurer, Delta Fire & Casualty Company, paid the thief the sum of $725 in order to settle his claim growing out of said accident.

During the month of June, 1956 plaintiff first learned of the collision and subsequent settlement which was made available through police sources in Denver, Colorado, and thereupon made demand for the sum it had paid to Whitacre as a result of the theft of the Ford automobile. Settlement was refused and plaintiff on the third day of January, 1957 filed suit against Entrikin and his insurer.

Defendant filed an exception of vagueness which was overruled, a plea of prescription of one year and exception of no right of action and with full reservation of all his rights, an answer. The case was then submitted to the District Court upon the agreed statement of facts which we quote:

'It is mutually agreed by and between Percy J. Landry, Jr., Attorney for the Plaintiff, and Charles W. Wilson, representing the firm of Watson Blanche, Wilson, Posner and Thibaut, Attorneys for Defendants, that Delta Fire and Casualty Company is an insurance company organized under the laws of the State of Louisiana with its domicile in the City of Baton Rouge, Louisiana; that Robert D. Whitacre was the owner of a 1951 Ford Custom Victoria Sedan bearing Motor Number B1DA 148967 on February 2, 1954; that it was stolen in the State of Minnesota on that date and Plaintiff had issued a policy of insurance to the said Whitacre insuring the Ford against theft and the policy was in full force and effect on February 2, 1954; that on April 21, 1954, Plaintiff paid the said Whitacre $1,072.50 under the before-mentioned policy had became subrogated in accordance with the Subrogation Clause in the Sworn Statement in Proof of Loss marked P1 and being made a part hereof; that Darhl Albert Hawley was driving said 1951 Ford on U.S. Highway 61 in St. Charles Parish, Louisiana, about 12:30 AM on February 14, 1954, without the consent of Plaintiff and without Their knowledge and he was in collision with a 1952 DeSoto Sedan, owned and driven by Defendant Paul P. Entrikin; that said collision happened as described by the said Entrikin in his deposition taken before Janet Parker in Baton Rouge, Louisiana, on February 21, 1957; and as shown on the diagram of accident Report No. 01305 of the Louisiana State Police, a photostat of which is being marked P2 and is being made a part hereof; that the 1951 Ford was completely demolished and its actual cash value at the time of the collision was $925.00; that Defendant Entrikin had his car insured by Defendant Delta Fire and Casualty Company with a public liability and property damage policy, which policy was in full force and effect at the time of said collision, and a copy of said policy is being marked D1 and is being made a part hereof; that Defendant Delta Fire and Casualty Company paid the said Darhl Albert Hawley the sum of $725.00 on February 14, 1954, in order to settle his claim, growing out of said accident and secured a release from the said Hawley, a copy of which is being marked D2 and is being made a part hereof; that Plaintiff did not learn of the above described collision or subsequent settlement made with the said Hawley until June, 1956, through police sources in Denver, Colorado, and this was the first information they had concerning the whereabouts of said Ford since its theft in the State of Minnesota on February 2, 1954; that since June, 1956, plaintiff and Defendant Delta Fire and Casualty Company have negotiated in an effort to settle this matter and the letter being made a part hereof and marked P3 was written by an officer of Delta Fire and Casualty Company to plaintiff.'

By agreement of counsel for both parties the exception of no right of action and the plea of prescription were referred to the merits. Briefs were filed and the lower court with written reasons overruled the exception of no right of action and the plea of prescription of one year, and rendered judgment in favor of the plaintiff in the amount of $700, and it is from this judgment that the defendants have appealed.

The only issue on this appeal is on the plea of the prescription of one year which is admitted to be applicable in this case. The law governing this prescription is contained in LSA-C.C. Article 3536 and Article 3537, the pertinent portions of which are hereinafter quoted.

Article 3536 applicable to the question before the court reads as follows:

'The following actions are also prescribed by one year: That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses. * * *'

The pertinent portion of Article 3537, LSA-C.C., are as follows:

'* * * And in the other cases from that on which the injurious words, disturbances or damage were sustained.

'And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.'

It is plaintiff's contention that the prescription of one year to his cause of action did not begin to run under the first quoted provision of Article 3537 but was controlled by the second quoted provision which he has italicized as follows: 'And where land, timber Or property has been injured, cut, damaged or destroyed From the date knowledge of such damage is received by the owner thereof.' Plaintiff's position as stated in his brief is that: 'Prescription did not begin to run until the month of June, 1956, because it was then that they learned of the 1954 accident and subsequent settlement made by defendant, Delta Fire and Casualty Company. Up until that time, Plaintiff had no knowledge whatsoever of the whereabouts of the 1951 Ford which had been stolen on February 2, 1954, in the State of Minnesota.'

It is defendant's contention that the first quoted provision, supra, of Article 3537 is controlling of the time when prescription began to run in the case at bar, and therefore the prescription began to run on the date that the damages were sustained. Defendant by way of note in his brief states: 'Plaintiff's argument that the last paragraph of Article 3537 should apply was not treated by the trial judge but appellants submit that Article 10, Revised Civil Code, (should be Article 16) and the ejusdem generis rule of interpretation as applied in McCaleb v. Fox Film Corp., (5 Cir.), 299 F. 48 and Colley v. Canal Bank & Trust Co., (D.C.), 64 F.Supp. 1016, refute the application of that paragraph to this case.' We agree with the defendant's argument that the second quoted portion of Article 3537, supra, which was placed in this article by Act No. 33 of 1902 and which states: 'And where land, timber or property has been injured, cut, damaged or destroyed, (etc.) * * *,' that the word property contained therein is to be construed as referring to offenses or quasi offenses involving injury, damage or destruction to land or timber. The case of Liles v. Barnhart, 152 La. 419, 93 So. 490, 493, involved the alleged taking of oil illegally from land claimed by the plaintiff. In this case the Supreme Court stated:

'Article 3536 of the Civil Code provides that actions for damages for offenses and quasi offenses prescribe in one year, And article 3537, as amended by Act No. 33 of 1902, fixes the time from which this prescription begins to run. This court has repeatedly held, in suits for the value of timber cut and removed from land wrongfully, that the prescription of one year, pleaded under those articles, is applicable; and, when well founded infect, operates as a bar to recovery. There is no reason why those decisions should not apply to the present case. In principle, there is no essential difference, between cutting timber off of land tortiously and selling it, or in manufactured * * * product, and taking oil and gas from land tortiously and selling it. If, in the former instance, the prescription of one year bars the action for the value of the timber removed, for the same reason it should bar an action for the value of oil and gas extracted and taken from land.' (Emphasis ours.)

Thus we see that our Supreme Court has held that oil, which is property, when taken illegally from land belonging to another would be governed by the second quoted part of Article 3537 as amended by Act No. 33 of 1902.

The case of Mayer v. Ford, La.App., 12 So.2d 618, 621, decided by this court with the late Judge Dore as its organ, is one involving destruction and damage to one's land caused by the excavation and removal of dirt near the boundary line by the defendant. In this case this court in discussing the prescription of one year under Articles 3536 and 3537 of our Civil Code, stated:

'* * * Thus, it fairly can be stated that the date from which prescription began to run is fixed as October 24, 1939. Under Civil...