Freyou v. Marquette Cas. Co.

• Decision Date: 28 January 1963
• Docket Number: No. 737,737
• Citation: 149 So.2d 697
• Court: Court of Appeal of Louisiana — District of US
• Parties: Sidney FREYOU, Plaintiff-Appellant, v. MARQUETTE CASUALTY COMPANY, Defendant-Appellee.

Page 697

149 So.2d 697

Sidney FREYOU, Plaintiff-Appellant, v. MARQUETTE CASUALTY COMPANY, Defendant-Appellee.

No. 737.

Court of Appeal of Louisiana, Third Circuit.

Jan. 28, 1963.

Dissenting Opinion Jan. 30, 1963.

Rehearing Denied Feb. 20, 1963.

Certiorari Refused March 25, 1963.

Simon & Trice, by Phil Trice, Lafayette, for plaintiff-appellant.

Helm, Simon, Caffery & Duhe, by Patrick T. Caffery, New Iberia, for defendant-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

SAVOY, Judge.

Plaintiff brought suit individually and on behalf of his minor daughter, Phyllis Freyou, for personal injuries and loss of wages sustained by the daughter and for medical and hospital bills paid by plaintiff.

The petition alleges that on December 10, 1960, at about 11:30 P.M. his then 20-year-old daughter was a guest passenger in a Chevrolet truck owned by defendant's named insured under a liability policy issued by it, and being driven, at the time, by Sidney Schexnayder, III, the named insured's son, with the insured's permission; that the driver, proceeding in a northerly direction about six (6) miles south of New Iberia, Louisiana, and at a speed of about 60 miles per hour, lost control of the vehicle, whereupon it collided with a culvert and overturned. Plaintiff alleges negligence on the part of the driver in failing to keep a proper lookout; failing to maintain proper control; and driving at an excessive speed.

The defendant insurer answered plaintiff's petition, generally denying its material allegations; alleging that there was no negligence on the part of the driver for the reason that the accident was caused by the collapse of a rear wheel, or a blowout or some other cause beyond the driver's control, and was, therefore, unavoidable; and alternatively, that the driver and plaintiff's daughter were on a joint mission or venture, thus making any negligence of the driver imputable to her, and/or that she was contributorily negligent.

After defendant's answer had been filed, the depositions of Sidney Schexnayder, III, Phyllis Freyou, and Ernest Crochet, Jr. were taken. At the taking of the depositions, it became quite apparent that these three young people had, until that time, been withholding pertinent facts about how the accident had happened. It appears from the record that they had been untruthful to their respective parents and to counsel for both plaintiff and defendant, saying simply that none of them knew exactly what had happened and/or that a rear wheel had collapsed.

However, from their depositions, it appears that these young people, all between 17 and 20 years of age at the time of the accident, had, along with Jan Babin, another young girl, met at a night club on the night of the accident. They left the night club about 11:30 P.M. in two (2) vehicles, Sidney Schexnayder, III and Phyllis Freyou in one, and Ernest Crochet, Jr. and Jan Babin in the other. As Schexnayder attempted to pass the other automobile, for some reason not entirely clear from the record, he applied his brakes so as to drop back into his following position, and at that moment the truck went out of control, running off the road on the left-hand side. These details were not revealed until the depositions were taken, some 13 months following the accident.

Thereafter, defendant filed a motion for summary judgment, taking the position that the cooperation clause of its policy had been violated and that it was, therefore, relieved of any liability.

The district court upheld the motion and granted summary judgment in defendant's favor, dismissing plaintiff's suit, from which judgment plaintiff has brought this appeal.

Plaintiff contends, first, that summary judgment was not the proper procedure for disposition of the matter; and second, that in no event was defendant prejudiced in its defense to the extent that plaintiff's suit should have been dismissed.

Defendant contends, in effect, that it cannot now properly defend the suit due to the prior lack of cooperation which, of itself, voided the contract of insurance.

First, with respect to whether or not summary judgment was the proper procedure, it seems to us that there is no genuine factual issue regarding the lack of cooperation up until the time the depositions were taken. That then left the question of whether or not defendant mover was entitled to judgment as a matter of law on the basis of lack of cooperation. LSA-C.C.P. Article 966 reads, in part:

'The judgment sought shall be rendered forthwith if * * * there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.'

It appears to us, then, that the district court properly disposed of the matter by summary judgment as a matter of procedure.

We do not, however, agree with our learned brother of the district court that the circumstances of the instant case necessitate a dismissal of plaintiff's suit. From our view of the jurisprudence we have reached two (2) conclusions: That each case rests on its own facts and circumstances, and that a breach of the cooperation clause must be both material and prejudicial. Baham v. Stilley, (La.App., 1 Cir., 1960), 122 So.2d 884; Lindsey v. Gulf Insurance Company, et al, (La.App., 2 Cir., 1942), 7 So.2d 757; Upshaw v. Great American Indemnity Company, (La.App., 2 Cir., 1959), 112 So.2d 125; Broussard v. Broussard, (La.App., 1 Cir., 1956), 84 So.2d 899; Elba v. Thomas, (La.App., Orl., 1952), 59 So.2d 732; Garland v. Audubon Insurance Company, (La.App., 1 Cir., 1960), 119 So.2d 530.

As applied to the instant case, an examination of the record shows that plaintiff's suit was filed on September 27, 1961; on November 7, 1961, plaintiff fixed the case for trial on February 12, 1962; on January 22, 1962, defendant obtained a refixing for March 16, 1962; on January 24, 1962, defendant filed its answer; on January 29, 1962, the depositions herein referred to were taken; on February 21, 1962, defendant filed its motion for summary judgment. It thus appears that when the depositions were taken on January 29, 1962, the then scheduled trial date was a little better than a month and a half away, and that defendant had only filed its answer on January 24th. While we are sure that the young peoples' change of heart was a surprise to all concerned, plaintiff as well as defendant, we do not feel that under the circumstances of this case any real prejudice resulted. We are dealing here with young people who were apparently afraid to divulge the details of their escapade and who, finally faced with making a statement under oath, realized the error of their ways. We do not condone it, but realize that such things happen on occasion. All things considered, we are of the opinion that the interests of justice require a trial on the merits.

For the reasons assigned, the summary judgment appealed is reversed and set aside, and this case is remanded to the district court for further proceedings. All costs of this appeal are assessed against defendant.

Reversed and remanded.

CULPEPPER, Judge (dissenting).

I agree with the majority opinion that under the pleadings and depositions filed in this case there is no genuine issue as to material fact preventing the consideration of the motion for summary jdugment. L.S.A.-CCP Art. 966; Touchet v. Firemen's Insurance Company of Newark, New Jersey, 146 So.2d 441 (3rd Cir.La.App.); McDonald v. Grande Corporation, 148 So.2d 441 (3rd Cir.La.App.); Walmsley v. Gilmore, 144 So.2d 625 (4th Cir.La.App.); Jacobs v. Back, 141 So.2d 920 (4th Cir.La.App.); Snell v. Intercoastal Airways, Inc., 139 So.2d 70 (4th Cir.La.App.). However, I cannot agree that as a matter of law the false statement made by the insured driver did not constitute a breach of the cooperation clause.

The 'conditions' section of the policy provides the following, which is a standard cooperation clause: 'The insured shall cooperate with the company, and upon the company's request shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits * * *.'

It is now well settled in our jurisprudence that the making of a false statement by the insured to the insurer constitutes a breach of the cooperation clause, where the false statement is material, given in collusion with the claimant, and is prejudicial to the insurer. See the cases cited in the majority opinion and the general statement of the law found in 29A Am.Jur. 586, Verbo 'Insurance', Section 1476.

In the present matter, there is no question that the admittedly false statement given by young Schexnayder to the defendant insurer was material. His first statement said that the accident was not caused through his fault, but by the rear wheel coming off the truck, causing him to lose control and run into the ditch. His second statement, given about a year later, said that he was in the process of passing another vehicle when he applied his brakes, swerved to the left and ran off the road. Clearly these discrepancies in the two statements were not minor details nor the result of an honest mistake. The discrepancies involved the very cause of the accident, and were clearly material to the insured's defense.

Furthermore, young Schexnayder admitted that his false statement was made in collusion with Phyllis Freyou, his guest passenger, who is the injured claimant in these proceedings. Also in collusion was Ernest Crochet, Jr., the young man who was in the other vehicle. All three of these young people admitted that soon after the accident they conferred and agreed to give their first false explanation of the cause of the accident.

The only real issue of law in this case is whether the making of the false statement by the insured was prejudicial to the insurer. In deciding this issue, the first question is whether the insurer was prejudiced where the first statement, favorable to the insurer, was false and...