Ducote v. U.S. Fidelity & Guar. Co., No. 45484

• Court: Supreme Court of Louisiana
• Writing for the Court: FOURNET
• Citation: 130 So.2d 649,241 La. 677
• Decision Date: 29 May 1961
• Docket Number: No. 45484
• Parties: Adrast DUCOTE, d/b/a Orleans Tile Works v. UNITED STATES FIDELITY & GUARANTY CO.

Page 649

130 So.2d 649 241 La. 677 Adrast DUCOTE, d/b/a Orleans Tile Works
v.
UNITED STATES FIDELITY & GUARANTY CO. No. 45484. Supreme Court of Louisiana. May 29, 1961.

[241 La. 678] Gertler, Hart & Duran, New Orleans, for plaintiff-appellant.

Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.

FOURNET, Chief Justice.

The plaintiff, Adrast Ducote, doing business as Orleans Tile Works, brought suit against his insurer, defendant United States Fidelity & Guaranty Co., to recover $656.45, the cost of repairing a truck insured under a comprehensive liability policy issued to the plaintiff by the defendant. The answer denied liability under the policy because of certain exclusion clauses. The judgment of the lower court, in favor of plaintiff, was reversed on appeal to the Fourth Circuit Court of Appeal and the plaintiff's suit dismissed at his cost. See 125 So.2d 176. The case is now before us for review on certiorari granted upon plaintiff's application.

The facts as found by the Court of Appeal and which are not in dispute are that plaintiff during a short period of time permitted his employee Lamar Franklin, whose duties included those of warehouseman and truck driver, to keep the truck he customarily drove at his home overnight and on week-ends as a convenience of transportation, but the privilege was withdrawn following discovery that the employee

Page 650

had been using the vehicle for his [241 La. 680] own pleasure; the truck was thereafter left at the warehouse when not in business use and the employee was forbidden to drive it except during business hours and for business purposes. On a subsequent Saturday night in March, 1958, when the business was closed for the week-end, the employee used his key to enter the building in which the truck was kept and departed with it on a venture of his own; he was intoxicated at the time and later ran into the back of a parked vehicle causing the damage to the truck for which recovery is sought herein. ¹ His arrest followed, and on arraignment he pleaded guilty to the criminal charges of unauthorized use of movables, operating a vehicle while intoxicated, and reckless operation of a vehicle.

Under the policy of insurance relied upon, comprehensive coverage applied to loss or damage to the automobile except by collision or upset, but including fire, theft and windstorm, with special declaration that loss occasioned by certain perils, among which are 'malicious mischief or vandalism * * * shall not be deemed loss caused by collision or upset.' (Coverage E) ² The plaintiff did not carry collision[241 La. 681] insurance because of the high rate but if, as he contends, the loss in the instant case could be said to have been occasioned by theft, vandalism or malicious mischief, since none of these would constitute collision, the policy would cover the loss.

The Court of Appeal ruled out theft, since there was no intent on the part of the employee to permanently deprive the owner of the vehicle; and also rejected malicious mischief and vandalism, using the test of intent in weighing whether the damage to the truck was caused by those acts and concluding no evidence had been offered nor was any before the Court which would even suggest that the employee intended to damage or destroy the truck or that he drove it in a manner to indicate such intent.

Counsel for plaintiff assign as error that the Court of Appeal applied criminal law principles and concepts in this civil action ex contractu, despite the 'great wealth' of jurisprudence cited to the Court which [241 La. 682] would have enabled it to decide the one issue of the case on civil law principles, and argue 'It is true that this employee may not have had the specific intent to commit the crime of theft as defined by our State states, ³ but certainly his conduct was far outside the ordinary course of human conduct, and from these facts it could and should be concluded that there was present the general intent provided for in R.S. 14:10 ⁴ to commit the three crimes to which he...