American Ins. Co. v. Hartford Acc. & Indem. Co.

• Decision Date: 15 November 1966
• Docket Number: No. 6692,6692
• Citation: 198 So.2d 757
• Court: Court of Appeal of Louisiana — District of US
• Parties: AMERICAN INSURANCE COMPANY v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al.

Page 757

198 So.2d 757

AMERICAN INSURANCE COMPANY v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al.

No. 6692.

Court of Appeal of Louisiana, First Circuit.

Nov. 15, 1966.

Writ Refused Feb. 3, 1967.

On Rehearing April 17, 1967.

Further Rehearing Denied May 29, 1967.

Louis G. Baine, Jr., of Seale, Hayes, Smith & Baine, Baton Rouge, for appellant.

Carlos G. Spaht, of Kantrow, Spaht, Weaver & Walter, Robert J. Vandaworker, of Taylor, Porter, Brooks, Fuller & Phillips, R. Gordon Kean, Jr., of Sanders, Miller, Downing & Kean, Baton Rouge, for appellees.

Before LOTTINGER, REID and SARTAIN, JJ.

REID, Judge.

This action for damages was instituted by American Insurance Company, collision insurer and subrogee of Capital City Erectors, Inc., against Baton Rouge Equipment Company, Inc. and its insurer Hartford Accident and Indemnity Company, and against Champion Carriers, Inc. Plaintiff seeks to recover from the defendants the sum of $11,649.20 alleged to be the reasonable and actual expenses and costs of repairing damages to a Champion hydrocrane unit, less the $100.00 deductible under its policy of insurance, which damages allegedly occurred on August 5, 1960, when the left front axle and axle housing on said unit gave way or broke, causing the said unit to go out of control and overturn on the shoulder of Louisiana Highway 67 above Baton Rouge. Plaintiff alleged that its insured, Capital City Erectors, Inc., purchased said equipment from Baton Rouge Equipment Company, Inc. which in turn had acquired the equipment from Champion Carriers, Inc., manufacturer. Plaintiff amended its petition to add as a party defendant the Bucyrus-Erie Company as a co-manufacturer with Champion Carriers, Inc., but later dismissed its suit as to the said Bucyrus-Erie Company. Plaintiff again amended its petition to add as a party defendant the Liberty Mutual Insurance Company, liability insurer of Champion Carriers, Inc.

Liberty Mutual Insurance Company filed a peremptory exception of no cause of action, alleging no coverage under its policy of insurance with Champion Carriers, Inc., which exception, for oral reasons assigned, was overruled on the basis of the decision of this Court in Thibodeaux v. Parks Equipment Company et al., 140 So.2d 215 .

Each of the defendants filed an answer of general denial and Champion Carriers, Inc. alleged contributory negligence on the part of plaintiff's insured, Capital City Erectors, Inc. which it contended was imputable to the plaintiff.

Champion Carriers, Inc. filed a peremptory exception of the prescription of one year which, for written reasons assigned, was overruled. Champion Carriers, Inc. renewed is peremptory exception of prescription of one year based on the contention that plaintiff's petition stated only a cause of action for redhibition and that plaintiff's subrogor had knowledge of the redhibitory defect more than one year prior to the date on which suit was filed. The Court this time maintained the exception and dismissed plaintiff's suit as to Champion Carriers, Inc. Liberty Mutual Insurance Company, insurer of Champion Carriers, Inc., also filed an exception of prescription of one year which the Court also sustained and dismissed plaintiff's suit as to it. Plaintiff applied for a new trial or rehearing on said judgments but later voluntarily dismissed said application.

Peremptory exceptions of prescription of one year were filed by Baton Rouge Equipment Company and its insurer Hartford Accident and Indemnity Company which were referred to the merits, 'for the reason that both demands by Capital City Erectors alleged negligence in the repair of this equipment, and the court felt obliged to hear evidence before passing on those pleas of prescription as to that part of the demands'.

Plaintiff filed a third amended petition to increase its claim by $274.80.

For oral reasons assigned June 2, 1965, judgment was rendered in this matter on June 7, 1965, in favor of the Hartford Accident and Indemnity Company and the Baton Rouge Equipment Company, rejecting plaintiff's demands at its costs.

Plaintiff urges on this appeal that the Trial Court erred in maintaining the exception of prescription in that (1) prescription applicable to the instant case is the prescription of ten years for breach of contract and not the prescription of one year, and (2) that even if the prescription of one year is applicable in this matter, that date from which it commenced to run was the date that the damage manifested itself on August 5, 1960, and not some prior date.

The Defendant-Appellee Liberty Mutual Insurance Company filed an answer to the appeal of the plaintiff, in which said answer it alleged that its peremptory exception based upon the failure of plaintiff's petition to state a cause of action against it should have been sustained on the grounds that appellee Liberty Mutual Insurance Company had no coverage applicable to the plaintiff's case. It therefore prayed that the Trial Court's ruling on its peremptory exception of no cause of action be reversed. It is upon this issue that the appeal was taken.

As set forth in the facts above, the Trial Court first passed upon the plea of prescription of Champion Carrier and Liberty Mutual Insurance Company and held that insofar as they were concerned the demands against them were in the opinion of the Court demands in redhibition, despite the fact that plaintiff's petition had not so designated them and despite the fact that plaintiff did not ask for all of the relief afforded him by the laws of our state in redhibitory actions. The Trial Court further went on to state that in considering this exception it had the deposition of C. W. Briggs, Jr., the chief owner and manager of Capital City Erectors, and based upon his testimony the Court held that Mr. Briggs had notice of the defects forming the basis for the suit as to Champion Carriers and its insurer for well over one year prior to the filing of the suit and for that reason sustained the plea of prescription.

After hearing the evidence the Court concluded that the same rule which it applied to the defendant Champion Carriers and its insurer Liberty Mutual also applied to the other defendants, the Baton Rouge Equipment Company and its insurer Hartford Accident and Indemnity Company. The Court then went on to say:

'The Court could comment at length on the reasons for that conclusion but it may be stated briefly that at the time of a failure of this equipment in April 1960 Mr. Briggs had the equipment weighed on two different occasions, one at the state weighing scales in West Baton Rouge Parish and again by Mike Safer's scales at his place of business. He then knew that the weight on the front axle of this equipment was approximately 14,000 pounds; he knew, he had all the necessary information to know, that the axle furnished with this equipment could not bear that much weight; if he remembered the specifications, he remembered that this machine was designed to bear a weight of 11,000 pounds on the front axle. The redhibitory vice in the machine, as I view the evidence in this case, was that, and that alone. It is not a question now of whose responsibility it was in putting in an insufficient front axle. It is beyond dispute, I think, that all the trouble with this machine arose because the front axle was insufficient.

'Sometime in April of 1960 Mr. Briggs and officials of Baton Rouge Equipment Company negotiated with a view of installing a heavier axle in the machine. Those negotiations amounted to nothing because Mr. Briggs was called upon to pay upward of $2,000 for the installation of the heavier axle.

'While it may not be entirely proper to say this, I am of the opinion that it I had been faced with a suit filed by Mr. Briggs against the sellers of this equipment within a year following April 27, 1960 I would have given him judgment for an amount sufficient to install this heavier axle, that is, a judgment in the sum of $2,180, because, from the evidence introduced in this case I think he would have been clearly entitled to it. He did not do that. That was his responsibility, and no suit was filed in connection with that defect for well over one year thereafter.

'Counsel for the plaintiff in the second numbered suit and for the plaintiff in reconvention in the first numbered suit have laid great stress on their charges of negligence on the part of Baton Rouge Equipment Company in connection with repairs to this machinery, and have cited numerous authorities for the proposition that such a claim is in contract and the prescription applicable is that of ten years. I might say, as counsel for the defendants stated, there is not a scintilla of evidence in this case that there was ever any negligence in any of the repairs made by Baton Rouge Equipment Company to this machinery. In my opinion it is beyond dispute that all of these accidents resulted from one fact and one fact alone, that the front axle of this machine was insufficient for the weight that it was called on to bear.'

This Court is in agreement with the opinion of the Trial Court in regard to the plea of prescription. This Court is also in agreement with the Court's finding of fact that there is no evidence in the record which would indicate any negligence resulting from any of the repairs made by the Baton Rouge Equipment Company to the machinery. The record is clear that the Trial Judge's statement 'that the front axle of this machine was insufficient for the weight that it was called on to bear' is eminently correct.

An examination of plaintiff's petition clearly shows that its demand is one of redhibition.

'3.

On information and belief, defendant manufacturer, Champion Carriers, Inc. warranted to Capital City Erectors, Inc., as purchaser, that the said unit was free from all defects by reason having been improperly constructed, either through fault in assembling, through design, or through use of defective or improper parts, said...