C. A. Collins & Son v. Pope Bros. Steam Cleaning Co.

Decision Date20 June 1963
Docket NumberNo. 9974,9974
Citation155 So.2d 278
PartiesC. A. COLLINS & SON, Plaintiffs-Appellants, v. POPE BROS. STEAM CLEANING COMPANY et al., Defendants-Appellees.
CourtCourt of Appeal of Louisiana — District of US

Peters, Tuck & Ward, Shreveport, for appellants.

Morgan, Baker, Skeels & Coleman, Shreveport, for Pope Bros. Steam Cleaning Co. and Home Indemnity Co.

Shuey & Smith, Mayer & Smith, Shreveport, for C. & C. Oil Field Servicing Co. and Eagle Star Ins. Co. Ltd. of London.

Blanchard, Goldstein, Walker & O'Quin, Shreveport, for Phoenix Ins. co.


HARDY, Judge.

This suit was originally instituted by plaintiff partnership against Pope Bros. Steam Cleaning Company, also a partnership, and its insurer, Home Indemnity Company, claiming fire damage to described oil well equipment allegedly caused by negligence of the operations of the defendant, Pope Bros. Pope and its insurer impleaded C. & C. Oil Field Servicing Company as a third party defendant, asserting that it was responsible for the negligence which caused the damage, and, alternatively, was a joint tort feasor. To this third party petition C. & C. and its insurer, Eagle Star Insurance Company, Ltd. of London, filed an answer generally and specifically denying any responsibility for the alleged acts of negligence and then asserted a reconventional demand against all other parties to this litigation. Plaintiffs in reconvention, in the course of their petitions, alleged that a tube pulling unit owned by C. & C. was under rent at the time of the fire to the original plaintiff, Collins. Collins filed an answer to the reconventional demand, denying the allegations thereof. After the filing of other pleadings which are not material to the issue presented by this appeal, Collins, by supplemental petitions, made demands upon the Phoenix Insurance Company, its liability insurer, as a third party defendant, praying that said defendant be ordered to appear and defend the suit, and, alternatively, that there be judgment over against said insurance company for any liability found against Collins as its insured, and for all expenses of the defense of the said suit. Phoenix filed an exception of no cause of action, predicated upon the proposition that the insurance contract with Collins specifically excluded coverage of rented property. From judgment sustaining the exception and dismissing Collins' demands against Phoenix Insurance Company, the former prosecutes this appeal.

The issue is stated by counsel for appellant as follows:

'The principal issue in this cause is whether the duty of a liability insurer to defend and be called into a suit is to be measured only by a reconventional demand which makes an inconsequential and non-essential allegation taking the case from the coverage of the insuring agreement when such allegation is emphatically denied by the insured.'

The principal arguments by counsel for both parties are devoted to a consideration of the opinion of this court in Kelly v. United States Fidelity & Guaranty Company (2nd Circuit, 1954), La.App., 76 So.2d 116. Counsel for appellant urge that the Kelly case is distinguishable from the instant matter and therefore should not be accepted as authority, while counsel for appellees urge, with equal zeal, that Kelly should be regarded as establishing a principle clearly applicable to the case before us.

Under the circumstances, and with regret, we think it necessary to set forth a brief re sume of the facts and issues presented in the Kelly case. Plaintiff, Fancy A. Kelly, Sr., the driver and operator of a truck owned by Frank A. Kelly, Jr. and insured by the defendant, while transporting a number of farm workers, was involved in an accident in which some of the occupants of the truck were injured. The injured parties brought suit against Kelly, Sr., alleging that they were his farm laborers, and were injured while being transported to work. Defendant insurer was notified of the filing and pendency of the suits, and called upon to defend them under the provisions of the policy argeement. The insurer refused to participate in the defense on the ground that the policy specifically excluded coverage for injury of any employee of the insured other than one engaged in domestic employment. After filing of a supplemental petition, including a call in warranty, the defendant was forced to undertake the defense of the suits and made compromise settlements of the claims of...

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6 cases
  • Knapp v. Chevron USA, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 4, 1986
    ...363 So.2d 974 (La.App.1978); Ada Resources v. Don Chamblin & Associates, 361 So.2d 1339 (La.App.1978); C.A. Collins & Son v. Pope Bros. Steam Cleaning Co., 155 So.2d 278 (La.App.1963); Kelly v. United States Fidelity & Guaranty Co., 76 So.2d 116 (La.App.1954); Lang v. Jersey Gold Creameries......
  • Jackson v. Lajaunie, s. 51959--51961
    • United States
    • Louisiana Supreme Court
    • December 11, 1972
    ...Smith v. Insurance Company of the State of Pennsylvania, 161 So.2d 903 (La.App.1st Cir. 1964), C. A. Collins & Son v. Pope Bros. Steam Cleaning Company, 155 So.2d 278 (La.App.2d Cir. 1963). Quantum. Defendants complain of the increase in the award by the Court of Appeal from $35,000 to $60,......
  • Smith v. Insurance Co. of State of Pa.
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 2, 1964
    ...or declaration affirmatively alleges circumstances warranting invocation of such a contractual exclusion. C. A. Collins & Son v. Pope Bros. Steam Cleaning Co., La.App., 155 So.2d 278; Foreman v. Jordan, La.App., 131 So.2d 796; Superior Cleaners v. New Amsterdam Casualty Co., La.App., 116 So......
  • Bandy v. Avondale Shipyards, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 18, 1972
    ...195 So.2d 679 (La.App.1967); Smith v. Insurance Co. of Pennsylvania, 161 So.2d 903 (La.App.1964); C. A. Collins & Son v. Pope Bros. Steam Cleaning Co., 155 So.2d 278 (La. App.1963); Foreman v. Jordan, 131 So.2d 796 (La.App.1961); Kelly v. United States Fidelity & Guaranty Co., 76 So.2d 116 ......
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