Butler v. Pardue
| Decision Date | 05 April 1982 |
| Docket Number | No. 14839,14839 |
| Citation | 415 So.2d 249 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Carl BUTLER, Individually and as Administrator of His Minor Sons, Brandon Butler and Jarred Butler & Linda Butler, Individually, Plaintiffs-Appellees, v. Alfred C. PARDUE and Commercial Union Insurance Company, Defendants-Appellants. |
Koselka, Swearingen & Street by C. Daniel Street, Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendants-appellants.
Hamilton & Carroll by O. N. Hamilton, Jr., Oak Grove, for plaintiffs-appellees.
Before MARVIN, FRED W. JONES and SEXTON, JJ.
In this cause the issue is whether the driver at fault in an automobile accident was operating the automobile with the owner's permission. The trial court found that the driver did have the owner's expressed or implied permission within the meaning of the insured's insurance policy, and thus held the minor driver's father's insurer liable for the plaintiffs' injuries. The defendant insurance company has suspensively appealed. The defendant, Alfred C. Pardue, father of the minor driver of the automobile did not appeal. We amend and as amended, affirm.
The facts are undisputed. On September 2, 1980, plaintiff-appellee, Linda S. Butler, was operating a 1976 Chevrolet pickup truck owned by her and her husband. The vehicle was being driven in an easterly direction on Marietta Street in Oak Grove, Louisiana. The plaintiff's minor sons, Brandon and Jarred, were also occupants of the vehicle. When the Butlers' vehicle reached the intersection of Marietta and Jarson Streets, it was struck by a 1976 Ford Maverick owned by Casey McPherson of Bastrop, Louisiana. The vehicle was being operated by Julie Pardue, minor daughter of the defendant, Alfred C. Pardue. At the trial below it was stipulated by all parties that the accident was caused by the negligence of Julie Pardue in that she failed to stop at the "STOP" sign that governs traffic on Jarson Street. As a result of the collision the plaintiff Carl Butler sued for the damage to the pickup truck and, as administrator of the estate of his minor sons, he claimed damages for their personal injuries. The plaintiff, Linda S. Butler, claimed damages for her own pain and suffering as well as for loss of earnings.
The defendant insurer contends that at the time of the accident, Julie Pardue was operating the vehicle without the permission, expressed or implied, of the owner and thus under the provisions of its policy the defendant insurance company owes no liability.
The trial court held that Julie Pardue had the implied permission of Casey McPherson, the owner of the vehicle, to operate the automobile within the meaning of the insurance policy held by Mr. Pardue. The court therefore held that the defendant insurer, Commercial Union Insurance Company, was liable to the plaintiffs in the following amounts:
4. EIGHT HUNDRED ONE AND 43/100 ($801.43) DOLLARS for medical expenses, and
5. SEVEN HUNDRED FIFTY AND NO/100 ($750.00) DOLLARS and FIVE HUNDRED AND NO/100 ($500.00) DOLLARS to Carl Butler as administrator for Brandon and Jarred Butler, respectively, for personal injuries.
On appeal, the defendant, Commercial Union Insurance Company, alleges three specifications of error: (1) that the trial court erred in holding that Julie Pardue had implied permission from the owner to drive the 1976 Ford Maverick automobile, and in therefore holding Commercial Union Insurance Company liable to the plaintiffs, (2) that it was error to award lost wages to the plaintiff, Linda S. Butler, based upon the balance of the school year, and (3) that the trial court erred in awarding the sum of Five Hundred and No/100 ($500.00) Dollars for personal injuries suffered by Jarred Butler when, in fact, the plaintiffs have failed to prove that the minor suffered any compensable damages.
First we will address the issue of permission. From the record of the evidence and testimony adduced at the hearing, it appears that on September 2, 1980, Joan McPherson, the daughter of the owner of the automobile, used the automobile, with her father's permission to go to the nearby town of Oak Grove, Louisiana, where her boyfriend was incarcerated. Accompanying Miss McPherson was Julie Pardue. Joan McPherson drove the car to Oak Grove and parked it at the courthouse. Both young ladies went into the courthouse and obtained admittance to the jail where they visited with Miss McPherson's boyfriend. After a few minutes, Miss Pardue desired to leave and get soft drinks for Miss McPherson and herself. The testimony of both Miss Pardue and Miss McPherson establishes that Miss McPherson, somewhat reluctantly, gave Miss Pardue the keys to the Maverick and told her to be careful and to come right back. Miss Pardue successfully operated the vehicle only three blocks before becoming involved in the collision with the Butler vehicle.
Upon reaching the scene of the accident, apparently Miss McPherson told Miss Pardue that she should not have used the vehicle. However, Miss McPherson testified at the hearing below that she did give Miss Pardue permission to use the automobile.
At the outset, the two girls collaborated and constructed an account of the accident which required Miss Pardue to state that she took the car without permission. This story was told to Mr. McPherson in order that Joan McPherson would not get into trouble with her father. The insurance investigators who interviewed the girls regarding the accident were also given the fictional account of the circumstances of the collision. The girls later recanted and told their parents the truth. At the hearing below each girl testified that they had previously lied but that the testimony they were giving to the court was the absolute truth. On appeal, our review of the record reveals that the testimony of the girls is vague and seemingly inconsistent at times. However, the trial court observed the witnesses as they responded to questions on direct and cross examination and based on these observations determined that the girls were then telling the truth. We find that this factual determination by the trial court is supported by the evidence presented and further that such a determination cannot be categorized as being clearly wrong....
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