Daire v. Southern Farm Bureau Cas. Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: TATE; HOOD; CULPEPPER; HOOD; FRUGE
• Citation: Daire v. Southern Farm Bureau Cas. Ins. Co., 143 So.2d 389 (La. App. 1962)
• Decision Date: 05 July 1962
• Docket Number: No. 591,591
• Parties: Roland P. DAIRE, Plaintiff-Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant-Appellant.

Page 389

143 So.2d 389

Roland P. DAIRE, Plaintiff-Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant-Appellant.

No. 591.

Court of Appeal of Louisiana, Third Circuit.

July 5, 1962.

Rehearing Denied July 27, 1962.

Certiorari Denied Oct. 9, 1962.

Fruge & Foret, by J. Burton Foret, Ville Platte, for defendant-appellant.

Fusilier, Pucheu & Soileau, by L. O. Fusilier and J. William Pucheu, Ville Platte, for defendant-appellee.

Before TATE, SAVOY, HOOD, CULPEPPER, and McGEE, JJ.

TATE, Judge.

This is a personal injury suit. On May 23, 1960, the plaintiff fell from the porch of a building owned by Wilfred LaHaye and Clifton Fruge. Made defendant is the Southern Farm Bureau Casualty Insurance Company, which had issued to LaHaye, Fruge, and another a 'Farmer's Comprehensive Personal Liability Policy' covering their personal liability to others arising out of the use, ownership, or maintenance of a certain seven hundred acre 'farm premises' located at a described address. The defendant insurer appeals from a judgment awarding the plaintiff $21,365.26.

In urging reversal, the defendant-appellant contends in several alternatives:

(1) That the insurance policy in question did not apply to the building involved in the plaintiff's accident;

(2) That the trial court erred in holding that the plaintiff was a licensee by invitation (i.e., an invitee), rather than a licensee by permission, and in thus holding the insureds to the greater duty owed to an invitee as compared with the lesser duty owed to a licensee;

(3) That the insureds were not negligent, and that, even if they were, the plaintiff is barred from recovery by his own contributory negligence.

The defendant-appellant further contends that the award was excessive, in the event it is held liable for the plaintiff's injuries.

I. Coverage.

The allegedly defective building which caused the plaintiff's injuries was situated within the limits of the 700-acre farm premises described by the policy as insured. It was situated close to Miller's Lake, which was also within these premises.

Under the policy, 'premises' was defined as, inter alia, 'all premises which the named insured * * * owns * * * or operates as a farm * * * and includes * * * Other premises and private approaches thereto for use In connection with said farm * * *'.

The defendant contends that the building in question was used as a camp and not for farming purposes, and that it therefore was not within the coverage of the policy.

The policy, however, insured not only All premises owned and operated as a farm at the address in question, but additional included 'other premises * * * for use In connection with said farm'. The building in question was situated on the described farm premises. It was also used 'in connection with' the farming operations; for the use of the building 'in connection with' farming operations means that its use must only be related to or associated with the ownership or operation of the farm, not that the primary or only purpose of such use must be for farm purposes. See Keenan v. Wactor, La.App. 3 Cir., 130 So.2d 800, certiorari denied (especially syllabus 6). As the trial court stated, the building 'is used as part of the over-all farming operation of said farm. * * * (I)n fact, the working hands on the farm, the Negroes, often use the camp to cook and so forth. (I)t is apparent to this Court that the camp is part and parcel of the farm insured under said policy.'

We therefore have no difficulty in finding that the building in question, although much used as a fishing camp, was covered by the policy along with the purely farming structures situated upon the insured premises. See also 7A Appleman's Insurance Law and Practice, Sections 4493.2 (p. 18) and 4493.3 (p. 22).

II. The plaintiff an invitee or a licensee?

The trial court held that the plaintiff was an invitee to whom the insureds owed the duty of reasonable care, which included the reasonable duty of prior discovery and correction of or warning against latent dangers. (As stated in Alexander v. General Acc. Fire & Life Assur. Corp., La.App., 98 So.2d 730, 734: '* * * the more general rule is that an express invitation to be on the premises, as distinguished from a merely permissive use thereof, carries with it an implied assurance to the invitee that the premises are reasonably safe for his use and that the host has exercised ordinary care for his safety.')

Able counsel for the defendant-appellant contends, on the other hand, that the plaintiff was merely a licensee by permission, relying upon the distinction set forth at 65 C.J.S. Negligence § 32, p. 488. 'A distinction has been made, in this connection, between a licensee by invitation and licensee by permission, to the effect that to a licensee by invitation the owner or occupant of the premises assumes the obligation of making and maintaining them in a reasonably safe condition for the use of licensee while he remains thereon by virtue of the invitation, and for a violation of this duty owner or occupant is liable in damages to the person injured thereby who is himself free from contributory negligence; whereas a licensee by permission takes the premises as he finds them as to any defects thereon, and the owner is not liable for any injury resulting to such licensee owing to defects on the condition of the premises, subject to the exception that owner or occupant must not willfully or wantonly cause injury to the licensee.'

The accident occurred at 10:30 P.M. in the evening. The insured, LaHaye and Fruge, together with the plaintiff and three other men had met at the camp on the insured premises at about 6:30 P.M., just after sundown. They had cooked a supper and had played cards until the party broke up. The plaintiff tripped and fell off the porch as he was leaving the building, severely fracturing his ankel.

Able counsel bases his contention that the use of the premises was permissive rather than invitee upon the testimony of LaHaye, the insured, to the effect that he recalled that the meeting took place at his camp upon the suggestion of the others in a meeting of the group earlier in the day; LaHaye who made a most honest and straight-forward witness, admitted, however, that he could not actually swear that the permitted use of his camp, (some eighteen months before the trial) took place only in this manner, and two other participants testified that LaHaye himself had proposed to the others that they use his camp for the supper that evening.

In either event, within the ordinary meaning of the terms LaHaye had expressly 'invited' the group to use his camp for the joint supper to which each of the participants including himself was to contribute his share of the expenses, and the plaintiff Daire was an 'invitee' rather than a licensee (considering that in Louisiana, unlike in many other jurisdictions, a social guest is held to be an invitee, see Alexander v. General Accident F. & L. Assur. Corp., La.App., 98 So.2d 730, and Crittenden v. Fidelity and Cas. Co., La.App. 2 Cir., 83 So.2d 538). As stated in the cited Alexander case at 98 So.2d 732, 'An invitee is a person who goes on the premises with the express or implied invitation of the occupant on the business of the latter Or for their mutual advantage.'

III. Negligence or not of the insureds: contributory

negligence, if any, of the plaintiff.

The most substantial question of this appeal concerns the liability vel non of the insureds based upon allegedly actionable defects or vices in their building.

As recently re-stated in Connella v. Hartford Acc. and Indem. Co., La.App. 1 Cir., 119 So.2d 881, 883: "While it is true that the owner of a building is liable for the vices and defects of construction or for his failure to make adequate repairs, this does not mean that he is an insurer of the safety of the occupants of the house for accidents which may befall them through their lack of ordinary observation and care. The vices and defects spoken of in the Articles of the Civil Code must be substantial or those which are likely to cause injury to a reasonably prudent person. * * * Imperfections exist in many floors, but, unless the defect be such as one would expect to cause injury while the premises are being subjected to normal use, it will be regarded as an insufficient basis for an action in the damages."

Counsel argues most forcefully that any defect which caused the plaintiff to trip and fall was of the sort that should reasonably be expected in a fishing camp of the nature here involved, so that the insureds were not negligent in failing to correct or warn against them, and so that the plaintiff was contributorily negligent in failing to take care to avoid injury through such defects reasonably to be anticipated.

The accident took place on the small and relatively narrow entrance porchway, at the door to the camp. As the plaintiff was leaving, his shoe caught on something on the porch floor; he stumbled and tripped off the porch onto the ground. This was the first time the plaintiff had ever gone to the camp.

About two months after the accident (when all witnesses concede that the condition of the porch was the same as at the time of the accident), the plaintiff and LaHaye, the insured, went back to inspect the porchway, since the plaintiff wanted to see what had made him fall. Upon close inspection, both of them found that the head of a large 18-penny nail protruded from the flooring in the center of the porch, in a direct path between the door and the concrete block used as a step between the porch and the ground. LaHaye estimated that this nail protruded about 1/16 to 1/8 above the surface of the flooring; the plaintiff estimated 1/2 . The testimony of both of these witnesses indicates that the protrusion of the nail was not noticeable except upon close inspection.

An eye witness to the accident had testified that the plaintiff stumbled in the area of this nail...