Fontenot v. Lloyds Cas. Insurer

• Decision Date: 30 June 1947
• Docket Number: 2912.
• Court: Court of Appeal of Louisiana — District of US
• Parties: FONTENOT v. LLOYDS CASUALTY INSURER.

31 So.2d 290

FONTENOT v. LLOYDS CASUALTY INSURER.

No. 2912.

Court of Appeals of Louisiana, First Circuit

June 30, 1947

Rehearing Denied Aug. 27, 1947.

Chas C. Jaubert, of Lake Charles, for appellant.

McCoy King, Anderson, Hall & Swift, of Lake Charles, for appellee.

OTT, Judge.

Plaintiff alleged in his original and supplemental petitions that the defendant insurance company wrote a policy of insurance on his 1941 Buick automobile bearing a certain motor number which policy is numbered 9037, wherein the defendant agreed to indemnify plaintiff for any damage resulting to said automobile and for which policy plaintiff paid the defendant the required premium, all of which will more fully appear by reference to said insurance policy attached to the petition and made a part thereof; that said policy was written on October 26, 1944, and extended to January 26, 1946, and that on January 6, 1945, his said automobile was damaged when it skidded off the road; that immediate notice of said damage was given to the defendant company and a demand was made for the payment of the said damages which amounted to the sum of $247. He prayed for judgment for said amount of damages, plus $100 for attorneys fees.

There is annexed to the petition a document purporting to be a copy or duplicate of a policy issued to plaintiff on the date and bearing the number alleged in the petition, and recites the type of coverage on the automobile described in the petition among the coverages included being that against collision or upset (less a $50 deductible clause) with a premium charge for that item of coverage of $38.75. There is attached to the policy an endorsement or rider stating the balance due the Associates Investiment Company whose interest Investment Company whose interest on a note held by it for $1093.50. This rider recites that it forms a part of policy number 9037 issued to Allen J. Fontenot by the Lloyds Casualty Insurer of Houston, Texas, and is effective from October 26 1944. The rider is countersigned with a stamp at Houston, Texas by the 'Southern General Agency, State Agents, By B,' the letter 'B' being signed with a pen and ink. In its answer, defendant admitted that it wrote a policy of insurance on plaintiff's automobile, and in further answering the original and supplemental petitions, defendant admitted that the policy written by it commenced on October 26, 1944, and extended to January 26, 1946, but denied the other allegations, and pleaded in the alternative that if the court should find that the defendant was indebted to plaintiff for any amount, 'it is alleged that said insurance policy referred to by petitioner provides that the first fifty dollars ($50.00) of any damage incurred by petitioner's car should be paid for by petitioner and not by defendant.' The answer then proceeds to set up a special defense and it is alleged, 'That the policy of insurance upon which plaintiff bases his claim provides under Condition No. 12 thereof,' (then follows quotations relative to the duties of the insured in case of loss as to giving notice, protecting the property, filing proof, etc.). The answer also alleges that 'as appears by reference to the insurance policy on which plaintiff bases his action, Associates Investment Company of Houston, Texas, has an interest in the proceeds of said policy of insurance and is therefore a necessary party to any suit seeking to recover under said policy.'

The case proceeded to trial and plaintiff was called as a witness. After plaintiff had answered a few preliminary questions counsel for defendant objected to any evidence in support of plaintiff's demand on the ground that the document annexed to the petition recited to be the policy sued on is not defendant's policy of insurance, but is merely a piece of paper showing on its face some...