Globe Indem. Co. v. Leesville Contracting Co., 98

• Decision Date: 17 November 1960
• Docket Number: No. 98,98
• Parties: GLOBE INDEMNITY COMPANY v. LEESVILLE CONTRACTING COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 329

124 So.2d 329

GLOBE INDEMNITY COMPANY v. LEESVILLE CONTRACTING COMPANY et al.

No. 98.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 1960.

William C. Boone, Leesville, for plaintiff-appellant.

Jack L. Simms, Wood & Jackson, by W. R. Jackson, Jr., Leesville, for defendant-appellees.

Before TATE, FRUGE and HOOD, JJ.

HOOD, Judge.

Globe Indemnity Company instituted this suit against a commercial partnership and the individual members of that partnership to recover amounts claimed to be due as premiums on several policies of liability and compensation insurance which plaintiff allegedly sold and issued to defendants. A number of defendants were named in the suit, two of them being Beattie A. Inglis, Jr. and Estate of LeRoy Lambert. An exception of no right or cause of action was filed by the said Beattie A. Inglis, Jr., and a similar exception was filed by Mrs. Bernita Burleson Lambert, individually and as natural tutrix for her minor children. These exceptions were tried and judgments were rendered on February 16 and February 19, 1960, maintaining them and dismissing the suit as to these defendants, with prejudice, at plaintiff's costs.

After these judgments were rendered plaintiff filed an amended petition seeking to have Mrs. Lambert, individually and as natural tutrix for her children, made a party-defendant. Mrs. Lambert then filed an exception of res judicata, which in due course was tried and on April 4, 1960, judgment was rendered maintaining this exception. From the judgments so rendered plaintiff has appealed.

Upon the trial of the exceptions of no right or cause of action, exceptors introduced evidence in an effort to establish that no privity of contract had existed between plaintiff and exceptors. Plaintiff did not object to the introduction of evidence at the trial, and the proof offered by exceptors was admitted and obviously was considered by the trial court. After judgments were rendered maintaining the exceptions of no right or cause of action, plaintiff then filed a motion for rehearing, urging for the first time that evidence was not admissible on the trial of the exceptions, which motion was denied.

Plaintiff now contends that the trial judge erred in admitting the evidence offered by exceptors in support of the exceptions of no right and no cause of action. It further contends that the evidence so introduced fails to support the position of exceptors to the effect that no privity of contract existed between the parties. We find it unnecessary to consider the question of whether the trial judge improperly admitted evidence in support of these exceptions, because we are convinced that the evidence contained in the record fails to establish the facts upon which exceptors rely in support of their exceptions.

The evidence establishes that LeRoy Lambert, prior to his death in 1959, was a partner in and served as manager of Leesville Contracting Company, that in his capacity as manager he purchased all of the insurance policies issued to that company from the Paul Anderson Insurance Agency and the DeRidder Insurance Agency, and that he did not at any time negotiate with or purchase any insurance directly from plaintiff, Globe Indemnity Company. On one occasion, in 1956, Lambert paid premiums on two policies issued by Globe Indemnity Company directly to the Anderson Insurance Agency, and it is reasonable to assume that all such premiums were paid to the agency rather than to the insurer.

Although we find no specific pleading or proof in the record to the effect...