Evans v. Allstate Ins. Co.
| Decision Date | 30 January 1967 |
| Docket Number | No. 6862,6862 |
| Citation | 194 So.2d 762 |
| Parties | Edward R. EVANS, Individually and on Behalf of His Minor Children, Michael Evans and Veronica Evans v. ALLSTATE INSURANCE COMPANY, Mrs. Catholine Gardache, Elmore and/or Elmere Gardache, Oakie Rosie Riley, Wife of/and Mr. Riley, and Earl Leon Riley, and Frank Carr. |
| Court | Court of Appeal of Louisiana — District of US |
Harold J. Lamy, of Dodd, Hirsch, Barker & Meunier, New Orleans, for appellant.
James H. Drury, of Drury & Lozes, Curtis R. Boisfontaine, of Sessions, Fishman, Rosenson & Snellings, New Orleans, for appellees.
Before LOTTINGER, REID and SARTAIN, JJ.
An automobile accident occurred on September 4, 1963 at approximately 11:00 p.m. on U.S. Highway 90, approximately three-quarters of a mile west of intersection of U.S. Highway 90 with U.S. Highway 190 in the Parish of St. Tammany. Apparently, a 1960 Ford Panel Truck being driven by Earl Leon Riley, one of the defendants herein, and occupied by Mrs. Catholine Gardache, also a defendant herein, had a blow out of the left front tire causing the vehicle to veer to the left and into the path of on-coming traffic, resulting in a collision with a 1957 Ford Sedan, owned and operated by the plaintiff, Edward R. Evans. As a result of the collision the Evans car was knocked out of control, ran off the highway, over an embankment and into a deep canal. Mr. Evans' 25 year old wife, Sandra Lou Evans, their three year old daughter, Valerie Ann Evans were killed. Mr. Evans and two other minor children sustained various personal injuries.
The circumstances leading up to the accident are as follows:
Earl Leon Riley, 16 years of age and an emancipated minor as a result of his marriage, entered into an agreement with Mrs. Gardache to sell certain furniture on the condition that he bring this furniture to Mrs. Gardache's camp in Waveland, Mississippi. There was an agreement that Mrs. Gardache would pay a certain amount over and above the purchase price to apply to his expenses in moving the furniture and appliances.
In compliance with this agreement the furniture was loaded on the truck and the journey to Waveland, Mississippi was begun. Shortly thereafter, however, Riley's truck had a flat tire on the left front side and Riley had the tire repaired. After the tire was repaired Riley and Mrs. Gardache continued along only to have another flat on the same tire. The tire was again repaired. Soon after leaving the Chef Menteur highway and while traveling along U.S. Highway 90 the same left front tire on the Riley truck blew out, causing the truck to veer to the left of the highway. The tire was completely disintegrated according to the testimony and it was apparent that a new tire would be needed. Riley claims to have gone to the Powers Junction Service Station at the intersection of Highway 11 and Highway 90 and purchased a tire from that service station. However, Riley could not remember the name of anyone he dealt with, had no receipt for the tire and could not remember how much he paid for the tire. The owner and manager of the service station testified that they knew nothing about this sale, and that they did not have road service at the time of the accident. At any rate, the tire was placed on the truck and the trip was continued. After proceeding several miles and reaching a point on U.S. Highway 90 somewhere between Chef Menteur and Rigolets bridges, the alleged new tire went flat. Riley then caught a ride to a nearby Shell Service Station just beyond the intersection of U.S. Highway 90 and U.S. Highway 190 in order to get the tire repaired. The operator of the service station testified that he advised Riley that the tire was dry rotted and defective and should not be used. He refused to repair the tire himself. At this point, Riley fixed the tire himself, brought it back to the truck and placed it back on the truck. The trip was again continued for a distance of several miles, the second blow out occurred causing the truck to crash into the on-coming Evans car, resulting in the injuries and deaths which are the basis of this suit.
Suit was brought against Earl Leon Riley, Mrs. Catholine Gardache, and her husband Elmore Gardache, and their insurer, Allstate Insurance Company. The suit against Mr. and Mrs. Gardache and their insurer, were based on three alternative theories:
1. That Earl Leon Riley was the agent of Mrs. Gardache at the time of the accident; or
2. That Mrs. Gardache and Earl Leon Riley were on a joint mission at the time of the accident; or
3. Mrs. Gardache was independently negligent in that she employed an obviously irresponsible young man to haul her furniture with an obviously defective truck.
In addition, Robert Powers, doing business as Powers Junction Service Station and his insurer, Employers Liability Assurance Corporation were sued for selling a defective tire to Earl Leon Riley. On the trial thereof judgment was rendered in favor of the plaintiff, Edward R. Evans, individually in the sum of $28,969.80 and against Earl Leon Riley, together with legal interest thereon from date of Judicial demand and for all costs. There was also judgment in favor of Edward R. Evans, on behalf of the minor child, Michael Evans and against Earl Leon Riley in the sum of $7,875.00, and on behalf of the minor child, Veronica Evans in the sum of $11,250.00. Judgment was rendered in favor of Allstate Insurance Company, Mrs. Catholine Gardache, Elmore Gardache, Oakie Rosie Riley, Mr. Riley, Robert Powers and Employers Liability Assurance Corporation dismissing plaintiff's suit against them and at plaintiff's costs. The plaintiff appeals herein from this judgment. Upon appeal of the case attorneys for the plaintiff assigned three errors.
1. 'The court failed to find Mrs. Gardache legally responsible for the accident in question under one of the theories proposed by plaintiff and that Allstate Insurance Company was equally liable under its policy of insurance covering her for the use of the non-owned automobile for which she was legally responsible.'
2. 'In failing to find that Powers Junction Service Station sold an obviously defective tire to Earl Leon Riley, for which it and its insurer, Employers Liability Assurance Corporation, was liable for judgment to the plaintiffs herein.'
3. 'That the award for the loss of plaintiff's wife should be increased to $20,000.00 and that the award to the plaintiff for the loss of his three year old daughter should be increased to $12,000.00.'
The opinion of this court will, therefore, be limited to a consideration of these three alleged errors.
The first question to be decided is whether or not Mrs. Gardache was 'using' the vehicle which was owned by Riley. Supporting their contention that Mrs. Gardache was using the vehicle, the attorneys for the plaintiff cite several cases to the effect that the word 'use' is much broader and is not limited to physical operation of the auto. Two of the cases cited from which the attorneys for the plaintiff quote at great length are Bolton v. North River Insurance Company, La.App., 102 So.2d 554 and Liberty Mutual Insurance Company v. Steenberg Construction Company, 8 Cir. 225 F.2d 294. In each of these cases extremely broad interpretation to the term 'use' or 'using' was applied and the insurers of the vehicles in question were held liable under the omnibus clause provisions of the policies for the acts of third parties which could in no way be held as the mechanical operation of the vehicles.
In the present case the injuries sued upon are not as a result of the operation or use of the insured automobile. Liability in this case is predicated upon a provision of the policy that the damages must 'arise out of the ownership, maintenance or use of the owned or non-owned automobile'. The policy covering the...
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