Churchman v. Ingram

• Court: Court of Appeal of Louisiana
• Writing for the Court: HARDY; KENNON
• Citation: Churchman v. Ingram, 56 So.2d 297 (La. App. 1951)
• Decision Date: 15 December 1951
• Docket Number: No. 7720,7720
• Parties: CHURCHMAN et al. v. INGRAM et al.

Page 297

56 So.2d 297

CHURCHMAN et al. v. INGRAM et al.

No. 7720.

Court of Appeal of Louisiana, Second Circuit.

Dec. 15, 1951.

Rehearing Denied Jan. 30, 1952.

Blakeley & Blakeley, Dallas, Tex., Gist, Thornton & Murchison, Alexandria, for appellants.

Harry Fuller, Winnfield, W. T. McCain, Colfax, Stafford & Pitts, Alexandria, for appellees.

HARDY, Judge.

This is a suit for personal injuries and property damages resulting from an automobile collision. Plaintiffs are Charles R. Churchman, a resident of Grant Parish, Louisiana, driver of one of the cars, who sustained serious personal injuries; Liberby Mutual Insurance Company, workman's compensation insurance carrier for Churchman's employer, seeking recovery of amounts paid out by way of compensation; and Motors Insurance Corporation, carrier of a collision insurance policy on the Churchman automobile. Defendants are Jack Ingram, Jr., a resident of Dallas Texas, driver of the other vehicle involved in the accident, and Texas Lloyds, a Texas insurance corporation also domiciled in Dallas, Texas, alleged to be the liability insurer of the Ingram vehicle.

Numerous preliminary pleas and exceptions were filed on behalf of the defendant, Texas Lloyds, which pleadings will be hereinafter discussed in some detail. The defendant, Jack W. Ingram, Jr., made no appearance.

The accident occurred in Grant Parish and involved the Churchman and Ingram automobiles. In this suit Churchman seeks recovery of the total sum of $27,148.01 made up of itemized claims for pain and suffering, loss of earnings, medical and hospital expenses, permanent physical injuries, and property damage to his automobile, being the $50.00 deductible expense which was not covered under his insurance policy. Plaintiff, Liberty Mutual Insurance Company, sought judgment for the sum of $1,470.00, representing compensation payments made to Churchman, together with $500.00 paid out as medical expenses, and further prayed for recognition of its right to claim all further amounts which might be paid in the way of compensation, as plaintiff, Motors Insurance Corporation, as subrogee, asked judgment in the sum of $1,535.40, representing the amount paid plaintiff, Churchman, under its collision coverage policy.

Defendant's, Texas Lloyds, exceptions were overruled and after trial on the merits there was judgment against said defendant in favor of plaintiff, Liberty Mutual Insurance Company, in the full sum of $1,970.00; in favor of plaintiff, Charles R. Churchman, in the full sum of $8,030.00; and in favor of plaintiff, Motors Insurance Corporation, in the full sum of $1,535.40, from which judgment the defendant, Texas Lloyds, prosecutes this appeal. Judgment by default was rendered as prayed for against the defendant, Ingram, from which judgment no appeal was taken. Accordingly, this appeal involves only Texas Lloyds.

The facts connected with the accident itself are not at issue. Indeed, no defense on the merits is urged. Similarly there is no dispute with respect to the quantum of the judgments awarded the several plaintiffs. The only issues which are before us concern the pleas and exceptions which the defendant, Texas Lloyds, contends should have been sustained.

Inasmuch as Texas Lloyds is the only defendant at interest in connection with this appeal, it will hereinafter be designated and referred to as the defendant.

Defendant filed a plea and exception of res judicata; an exception of no right of action, and an amended exception of no right of action.

The exception and plea of res judicata is predicated upon the proposition that the 95th Judicial District Court of Dallas County, Texas, on January 10, 1950, rendered and signed a declaratory judgment in a proceeding wherein Texas Lloyds was the plaintiff and Jack W. Ingram, Sr., the defendant; that said judgment declared that the policy of insurance issued by Texas Lloyds in favor of Jack W. Ingram was null and void, in no way binding upon the parties and of no force and effect. On trial of this case, in support of this plea, copy of judgment properly certificated under the Act of Congress was introduced in evidence.

In support of the exceptions of no right of action defendant relies upon a number of points which may be summarized as follows:

1. That at the time of the accident Jack W. Ingram, Jr. was the owner of the insured automobile and that Jack W. Ingram, Sr. had no insurable interest therein.

2. That the policy of insurance was issued upon the faith of the declaration by John W. Ingram, Sr. that he was the sole owner of the vehicle insured.

3. That by reason of the above facts there was a breach of the sole ownership clause which rendered the policy null and void ab initio, as a consequence whereof plaintiffs have no right of action against defendant.

4. That the policy of insurance is subject to Texas law with respect to the joinder of parties defendant, and both the terms of the policy and Texas law prohibit the right of direct action against the insurer.

5. That inconsistent and contradictory statements made by Jack W. Ingram, Sr., the named assured in the policy, constituted a violation of the corporation clause thereof and relieved the insurer of liability.

6. Alternatively, in the event the court should hold Jack W. Ingram, Jr. to be the named assured, that his inconsistent and contradictory statements constitute a violation of the cooperation clause and served to relieve the insurer of liability under the policy.

The above points raised by defendant involve mixed questions of law and fact and necessitate a recapitulation of the facts contained in the record which bear upon the defenses urged. We proceed to outline the material and partinent facts as briefly as may be possible.

Jack W. Ingram, Jr., a twenty-year old youth who had earned his wings in the service of the United States Navy, returned to his family home in Dallas, Texas, in October, 1949, to spend his leave with his family. It appears that the young man's father, Jack W. Ingram, Sr., had promised to help his son get a car if and when he successfully completed his training. On or shortly before October 25, 1949, young Ingram contacted his uncle, E. W. Ingram, who was engaged in the real estate and automobile business in Dallas, Texas, with reference to the purchase of an automobile. E. W. Ingram in turn contacted another brother and agreed to purchase from him a used 1946 Mercury sedan. The purchase price agreed upon was in the neighborhood of $1,700.00. During his service in the Navy, Jack Ingram had saved a part of his pay with which was bonds were purchased and transmitted to his father, Jack W. Ingram, Sr. There is no definite testimony which would fix the total amount comprehended by these savings, but it appears that it was a sum of several hundred dollars.

In effecting the purchase of the Mercury automobile the amount of $546.00 was made up by the father and son, admittedly by far the greater part thereof being the son's contribution. E. W. Ingram arranged with the Dallas National Bank for the financing of the balance of the purchase price and himself took the note to his brother, Jack W. Ingram, for his signature. The note was not introduced in evidence, but the testimony is conclusive to the effect that the father, Jack W. Ingram, was the maker of the note. Although it was contemplated that the monthly installments would be met by young Ingram out of his Navy pay, it does not appear that young Ingram was obligated on the note. The purchase transaction, the payment of the price, and the negotiation of the loan, all appear to have been concluded on October 25, 1949. In due course certificate of title of the automobile, as required under the laws of the State of Texas, was issued to Jack W. Ingram, the father.

Concurrent with the purchase and financing negotiations, and on the same date, E. W. Ingram, who in addition to his other activities, seems to have been engaged in insurance brokerage, called the Ray Shelton Agency by telephone and in conversation with an employee thereof, one Wilkinson, arranged for the issuance of a comprehensive coverage insurance policy. The policy was issued in the name of Jack W. Ingram as the insured. Certain provisions of the policy which are brought into question are hereinbelow set forth in detail.

After consummation of the described negotiations young Ingram took possession of the automobile and at the end of his visit in Dallas undertook to drive the automobile back to his base station. En route on U. S. Highway #71 on November 1, 1948, in Grant Parish, Louisiana, he was unfortunately involved in a collision with plaintiff, Churchman's, automobile, which is the basis of this suit.

It must be borne in mind that at the time young Ingram was a minor and as such he was prohibited from acquiring title to the automobile in his own name, from executing a valid and enforceable note or mortgage, and from obtaining in his name a policy of insurance.

First addressing ourselves to a consideration of the plea of res judicata we find not the slightest difficulty in making disposition thereof. Article 2286 of the Civil Code of Louisiana specifically sets forth and enumerates the requirements for the support of the plea of res judicata and clearly provides, inter alia, that '* * * the demand must be between the same parties * * *.'

Certainly the suit by the insurer against the named assured, to which none of the plaintiffs in this action were parties, cannot serve to support the plea that is urged and it follows that the same was correctly overruled.

We next proceed to a consideration, seriatim, of the grounds relied upon by defendant in support of its exception of no right of action.

At the outset we concede that the contract of insurance here involved is governed by the lex loci contracts. The contract of insurance was entered into in the State of Texas between a Texas insurance association and a resident of Texas as the...