Doty v. Central Mut. Ins. Co.

• Decision Date: 27 April 1966
• Docket Number: No. 1701,1701
• Citation: 186 So.2d 328
• Parties: Cora Lee DOTY, Plaintiff-Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 328

186 So.2d 328

Cora Lee DOTY, Plaintiff-Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.

No. 1701.

Court of Appeal of Louisiana, Third Circuit.

April 27, 1966.

Rehearing Denied May 25, 1966.

Writ Refused June 23, 1966.

LeBlanc & Boudreau, by Edward F. LeBlanc, Abbeville, for plaintiff-appellant.

Mouton, Champagne & Colomb, by George J. Champagne, Jr., Lafayette, for defendant-appellee.

Pugh & Boudreaux, by Charles J. Boudreaux, Lafayette, for defendant-appellee.

Before TATE, SAVOY and CULPEPPER, JJ.

SAVOY, Judge.

This is an action in tort instituted by the plaintiff, as a guest passenger in a vehicle driven by Arnel C. Beavers, resulting from injuries received by her following an accident which occurred on August 10, 1959, between the Beavers vehicle and another automobile. Made defendants were Arnel C. Beavers and his insurer, Central Mutual Insurance Company.

Central Mutual filed a motion for a summary judgment which was overruled by the trial judge.

Central Mutual then filed an answer denying liability under the policy of insurance issued by it, particularly in Exclusion (b) which reads as follows:

'Exclusions: This policy does not apply under Part I:

'(b) to bodily injury or property damage caused intentionally by or at the direction of the insured;'

Counsel for Central Mutual also filed an answer on behalf of Beavers generally denying all of the allegations of plaintiff's petition.

On exceptions of vagueness plaintiff filed a supplemental petition alleging certain medical expenses incurred as a result of the accident of August 10, 1959.

Denials were filed by both defendants. Shortly before the trial Beavers employed counsel of his own choosing. His counsel filed a supplemental answer.

After a trial on the merits the district judge held that since the accident and resulting injuries to plaintiff were due to the intentional acts of defendant Beavers, the exclusion (b) in Central's policy was a valid defense as to the claim of plaintiff against it. Judgment was rendered against Beavers in the sum of $25,000.00. The trial judge rendered judgment against Central for $1,000.00, penalties and attorney's fees under the medical provisions of the policy. He found Central arbitrary in not making the medical payments to plaintiff as provided in the policy, this being his reason for allowing plaintiff statutory penalties and attorney's fees.

From the judgment of the district court plaintiff appealed. Central answered the appeal, praying that the judgment of the district court be reversed insofar as it was condemned to pay to plaintiff $1,000.00 plus penalties and attorney's fees under the medical clause of the policy issued by it to Beavers.

Beavers answered the appeal asking for a reversal of the trial court's judgment. Alternatively, he asks that if liability is found on his part, that there be an insolido judgment against him and Central.

It might be noted that the policy issued by Central to Beavers has a $10,000/$20,000 liability limit.

Alleging certain additional defenses against plaintiff's suit, at the trial of the case the attorney for Beavers attempted to file a second supplemental answer wherein he alleged that Central was estopped from and had waived its right to any special defenses under the policy issued to him. That prior to the instant trial, he had filed a suit against Central in Harris County, Texas for property damages and medical expenses which he had incurred in the accident in the instant case. That these items had been paid by Central, and he was led to believe that they would not set up a special defense of non-coverage in the instant case. The trial judge did not allow the amendment.

The record reveals that shortly after the accident the plaintiff was confined to a hospital in New Iberia, Louisiana; that because of the accident, she suffered serious physical injuries. This is evident by the fact that none of the parties in the litigation complain of the $25,000.00 award made to plaintiff by the trial judge. Shortly after the accident an adjuster for Central visited plaintiff with the view of obtaining a statement concerning the accident. She was in no physical condition to be interviewed. Several days later the adjuster, a deputy Clerk of Court of Iberia, Louisiana, a Court reporter, and counsel for Central visited plaintiff in her hospital room in New Iberia, Louisiana, and questioned her under oath about the accident. The reporter took the notes, and after these were completed, the parties again visited the hospital room of plaintiff, and the notes which had been transcribed were read to her. She signed the document in which she made what the district judge considered the crucial statement, namely, that prior to the accident, which occurred at night, she was a guest passenger in the automobile owned and driven by Beavers; that she and Beavers had an argument and that just prior to the collision Beavers told plaintiff, 'I ought to run into that car and kill you.' The evidence reveals that there was a parked car, with its tail lights on, facing the Beavers car but being on the same side of the highway as the Beavers car.

Prior depositions of Beavers were introduced on the motion for summary judgment. These depositions were taken in the Harris County, Texas suit against Central for property damages to his car and for medical payments. In these depositions Beavers denied that he had made the statement attributed to him by plaintiff, that he ought to kill her. At the trial in the instant case, Beavers again denied the statement. At the trial of the instant case, plaintiff stated she could not remember the previous statements she had made; that since the accident she was very nervous and under the care of physicians.

The trial judge concluded Beavers had made the statement 'I ought to run into that car and kill you.'

Counsel for defendant, Central Mutual, states that the policy in the instant case was issued in Texas to a Texas resident, and, accordingly, the laws of that state should govern the instant case. As a basis for denying recovery, he cites the cases of County Gas Co. v. General Accident Fire & Life Assurance Corporation, 56 S.W.2d 1088, (Court of Civil Appeals of Texas, 1933), and Travelers Insurance Company v. Reed Company, 135 S .W.2d 611, (Court of Civil Appeals of Texas, 1939). It is unnecessary for us to consider whether the Texas law governs since we find that the above cited cases are distinguishable from the instant case.

The defense of Central Mutual is a very technical one, and the general rule is that insurance policies are for the benefit of the public generally rather than for the protection of the insurer and the insured.

The defense of Central is also a special one and an affirmative one. Under the provisions of LSA-C.C.P. Article 1005, it must be established by a preponderance of the evidence.

We only have the statement of plaintiff that Beavers said to her, 'I ought to run into that car and kill you.'

It is difficult for this Court to conceive that Beavers intended to do bodily harm to himself, for if he wanted to kill plaintiff, he would necessarily risk his own life. It is human instinct to preserve one's life.

We conclude that the statement made by plaintiff is not sufficient under the circumstances of this case to bar her recovery from Central Mutual, and we hold that the exclusion clause in the policy is not applicable to the instant case.

In answer to the appeal Central Mutual contends that the district judge should not have awarded plaintiff the sum of $1,000.00 medical payments under the policy together with penalties and attorney's fees. We agree with the ruling of the trial judge that defendant, Central Mutual, acted arbitrarily in not making the maximum medical payments provided under the policy, namely, $1,000.00, and that he also correctly ruled that plaintiff was entitled to statutory penalties and attorney's fees.

For the reasons assigned the judgment of the district court is affirmed insofar as if awards plaintiff medical payments of $1,000.00, penalties and attorney's fees; and is reversed insofar as it relieves Central Mutual Insurance Company from liability for personal injuries in the instant case. Judgment is hereby rendered in favor of plaintiff, Cora Lee Doty, and against Central Mutual Insurance Company and Arnel C. Beavers, in solido, in the full sum of $25,000.00, with interest from judicial demand at the rate of 5% Per annum until paid, and all costs of these proceedings (with the company's liability being limited to its policy limits of $10,000.00, together with all costs and all legal interest on the entire amount of the judgment until paid.)

Affirmed in part, reversed in part and rendered.

TATE, J., assigns additional concurring reasons.

TATE, Judge (concurring).

The writer concurs with the majority, but he desires to discuss briefly the defendant-appellee's contention that the insurance policy in the instant case, issued in Texas, must inexorably be governed by the law of the place of issuance, namely, Texas.

Beavers, the insured (who is also a codefendant, the driver in the present accident) was a resident of Texas. However, at the time of the accident, he had been working in Louisiana for over five months, going home to Texas only on weekends. The evidence indicates that in general he was an itinerant iron-worker who worked from job-site to job-site at various locations in Texas as well as in other states.

Under Article 10 of our Civil Code, the form and effect of contracts are governed by the law of the place where executed, Except that 'the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country where the laws are to have effect.' This is in fact probably the majority rule in American jurisdictions. See Tentative Draft No. 6 (April 22, 1960), Restatement of the Law Second, Conflict of Laws, Comment to ...