Collard v. Globe Indem. Co.

• Decision Date: 02 March 1951
• Docket Number: No. 3339,3339
• Citation: 50 So.2d 838
• Parties: COLLARD v. GLOBE INDEMNITY CO.
• Court: Court of Appeal of Louisiana — District of US

Page 838

50 So.2d 838

COLLARD v. GLOBE INDEMNITY CO.

No. 3339.

Court of Appeal of Louisiana, First Circuit.

March 2, 1951.

Thos. F. Porter, Thos. L. Raggio, Lake Charles, for appellant.

Moss & Graham, Lake Charles, for appellee.

ELLIS, Judge.

This is a suit in which the plaintiff is seeking to recover $780.00, the amount paid by him as a compromise settlement to third parties for damages suffered in an automobile accident which occurred on February 14, 1948.

Defendants filed an exception of no cause or right of action which was sustained by the lower court, and it is from this judgment that the plaintiffs have appealed.

Plaintiff alleged that on July 11, 1947 he obtained an insurance and indemnity policy from the defendant, covering a 1940 Diamond 1 1/2 ton truck, which policy was to remain in effect until July 11, 1948, which covered plaintiff against all loss incurred by reason of the liability imposed upon him by law for damages because of bodily injury or property damage sustained by any person or persons, caused by accident and arising out of the ownership, maintenance and use of this 1940 Diamond 1 1/2 ton truck. This insurance policy contained the following provisions under 'Insuring Agreements:'

'VIII. Automatic Insurance for Newly Acquired Automobiles

'If the named insured two his the owner of the automobile acquires ownership of another automobile and so notifies the company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobiles as of such delivery date:

'(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, or (b) if it is an additional automobile and if the company insures all automobiles owned by the named insured at such delivery date, but only to the extent the insurance is applicable to all such previously owned automobiles.

'This insuring agreement does not apply: (a) to any loss against which the named insured has other valid and collectible insurance, or (b) except during the policy period, but if such delivery date is prior to the effective date of this policy, the insurance applies as of such effective date.

'The named insured shall pay any additional premium required because of the application of the insurance to such other automobile. The insurance terminates upon the replaced automobile on such delivery date.'

Plaintiff further alleged that in November or December of 1947 he purchased an old Diamond T 1 1/2 ton log truck which would not run and had to be completely overhauled and rebuilt, and that he took the latter truck to his home shop where he proceeded to overhaul it, complete with a wrecker boom and winch, making this old truck into a wrecker, and that the rebuilding was completed on January 18, 1948, and put into service as such on that date, and that it could not have possibly been used as such until that date, and that this rebuilt wrecker replaced the 1940 Diamond T 1 1/2 ton truck which was also a wrecker and which was described in the policy. Plaintiff then alleged that the rebuilt wrecker was involved in an accident on Feb. 14, 1948, and that damages were suffered by third parties for which plaintiff effected a compromise after having been sued by the injured parties, and defendant's refusal to defend the suit.

Plaintiff further alleged that defendant was notified of this accident on the date that it occurred, and that on the following day, Feb. 15, 1948, an insurance adjuster representing the defendant, investigated the accident and was apprised of the fact that the wrecker belonging to the plaintiff which was involved in the collision was not the same as the one described in the policy, and on Feb. 16 or 17, 1948, defendant was requested to place the same under the policy, which the defendant refused to do, denying any liability.

Plaintiff-appellant contends that no delivery within the meaning of the automatic insurance clause, supra, was made to him until the date that this old salvaged Diamond T. truck had been rebuilt and was fit for use as a wrecker, which date was alleged in the petition to be January 18, 1948, and that as he had thirty days from this date of delivery to him in which to notify the defendant company if he replaced an automobile described in the policy, that plaintiff had complied with this provision for he had notified the defendant company on Feb. 16, 1948.

Defendant-appellee maintains delivery of this old salvaged Diamond T. Truck was made in November or December, 1947 when the truck involved in the accident was purchased, according to the petition.

It will be noted that this automatic insurance clause states that 'if the named insured * * * acquires ownership of another automobile and so notifies the company Within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobiles as of such delivery date * * * if it replaces an automobile described in this policy.' (Emphasis added.)

Plaintiff-appellant relies upon the case of Beard v. Peoples Industrial Life Insurance Company of Louisiana, La.App. 2nd Circuit, 5 So.2d 340, 342, in which Justice Hamiter, speaking for the Court, said:

'In the construction and interpretation of contracts of insurance, just as with other contracts, the intention of the parties is of paramount importance. This intention is determined in accordance with the plain, ordinary and popular sense of the language which they have used in the agreement, and by giving consideration, on a practical, reasonable and fair basis, to the instrument in its entirety.

'If the intention is clear, the courts are without right to change the contract in any particular; it is the law between the parties. But if the policy's language is uncertain or ambiguous, and more than one construction is possible, the construction most favorable to the insured will be applied. Also, if one of two possible interpretations would lead to an absurd conclusion it must be abandoned, and that which appears to be more consistent with reason and probability will be adopted.

'The insurance company prepares the contract, the insured not being consulted as to the form to be used, and all doubts with reference to the meaning intended must be resolved against the company.'

Also, the case of Stanley v. Cryer Drilling Company, 213 La. 980, 36 So.2d 9, 12, in which Chief Justice Fournet is the organ of the Court, it states:

"an automobile collision policy must be construed according to the evident intent of the parties, to be derived from the words used, the subject matter to which they relate, and the matters naturally or usually incident thereto. The language employed in the policy is to be construed so as to effectuate the insurance and not for the purpose of defeating it; * * *' [Parks v. Hall, 189 La. 849, 181 So. 191.]'

The language used in the automatic insurance clause, supra, is neither uncertain nor ambiguous. It is plainly to the effect that any insured acquiring ownership of another automobile and notifying the company within 30 days following date of its delivery to the insured that such insurance as is afforded by the policy applies to the acquired and delivered automobile if it replaces an automobile described in the policy. In the present case, the petition alleged that the ownership of the old salvaged Diamond T. log truck was acquired in November or December, 1947, and that 'petitioner took said truck to his auto shop.'

Article 2477 of the Revised Civil Code defines 'delivery' as the 'transferring of the thing sold into the power and possession of the buyer.' According to plaintiff-appellant's petition, the old Diamond T. 1 1/2 ton truck was transferred into the 'power and possession' of the plaintiff-appellant in November or December, 1947. Consequently, there was delivery of the vehicle in November or December, 1947, and, therefore, on the face of the petition, more than 30 days had elapsed before the notice required under the terms of the automatic insurance clause was given to the defendant-appellee.

Appellant however contends that this Court should be guided by the reasoning and ...