Hardtner v. Aetna Cas. & Surety Co.

• Decision Date: 08 March 1939
• Docket Number: 5723
• Citation: 189 So. 365
• Parties: HARDTNER et al. v. AETNA CASUALTY & SURETY CO. et al.
• Court: Court of Appeal of Louisiana — District of US

189 So. 365

HARDTNER et al. v. AETNA CASUALTY & SURETY CO. et al.

No. 5723

Court of Appeal of Louisiana, Second Circuit.

March 8, 1939

Rehearing Denied March 21, 1939

Writ of Certiorari and Review Denied May 29, 1939

Appeal from Ninth Judicial District Court, Parish of Rapides; R.C Culpepper, Judge.

Death action by Quintin T. Hardtner, tutor of Juliette and Henrietta Hardtner, minors, and by Mrs. Juliette Doerr Hardtner, widow of Henry E. Hardtner, against the Aetna Casualty & Surety Company, Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, the New Orleans, Texas &amp Mexico Railway Company, and Mrs. Fannye Lea Watson Richey administratrix of the succession of Stephen Leonard Richey. A supplemental petition was filed alleging that Mrs. Juliette Doerr Hardtner had died and praying that her heirs, Juliette and Henrietta Hardtner, minors, represented by Quintin T Hardtner, tutor, and Mrs. Violet Hardtner Blake be substituted for her. The two railway companies filed exceptions of misjoinder of parties defendant and were by agreement subsequently dismissed as parties defendant. From judgment sustaining exceptions of no cause and right of action filed by the insurance company and the administratrix, plaintiff was granted a devolutive appeal.

Judgment sustaining exceptions of no cause and no right of action filed by the insurance company to original petition reversed, and exceptions overruled; exceptions of no cause or right of action filed by the insurance company and the administratrix to the supplemental petition sustained in part and overruled in part, and case remanded.

One driving automobile with owner's consent was covered by automobile liability policy containing provision for coverage of claim on account of damage to property of " others" or bodily injury and death of " others" while automobile is driven by another with owner's consent, so that action could be maintained against insurer for death of owner in collision which occurred while automobile was being operated by another.

Gist & Thornton, of Alexandria, for appellants.

John R. Hunter & Son, of Alexandria, St. Clair Adams & Son, of New Orleans, and Leo Gold, of Alexandria, for appellees.

DREW Judge.

This suit was instituted by Quintin T. Hardtner, tutor of the minors, Juliette Hardtner and Henrietta Hardtner, and Mrs. Juliette Doerr Hardtner, widow of Henry E. Hardtner. The defendants were the Aetna Casualty & Surety Company, Guy A. Thompson, trustee of the Missouri Pacific Railroad Company and the New Orleans, Texas & Mexico Railway, and Mrs. Fannye Lea Watson Richey, administratrix of the Succession of Stephen Leonard Richey. Subsequently a supplemental petition was filed, alleging that Mrs. Juliette Doerr Hardtner, widow of Henry E. Hardtner, died on November 15, 1936, and that her succession was opened in the Ninth Judicial District Court in the proceedings entitled " Succession of Mrs. Juliette D. Hardtner", and bearing number 2509 on the probate docket of that court. The petition seeks to substitute her heirs as parties plaintiff in this suit. The heirs were Juliette Hardtner and Henrietta Hardtner, minors, represented by Quintin T. Hardtner, tutor, and Mrs. Violet Hardtner Blake, another daughter who had reached the age of majority prior to the death of Henry E. Hardtner.

In substance, the petition alleges that Henry E. Hardtner, deceased, owned an automobile which was covered by a policy of liability insurance issued to him by the Aetna Casualty & Surety Company. On August 7, 1935, Mr. Hardtner left Alexandria in the automobile for the purpose of driving to Biloxi, Mississippi. The automobile was driven by Mr. Richey, and the two gentlemen were accompanied by Miss Henrietta Hardtner and two of her friends. On reaching a point on U.S. Highway No. 71, some few miles west of Port Allen, the automobile collided with a locomotive and train, and Hardtner and Richey were killed. It is further alleged that Hardtner had never learned to drive an automobile, and had no knowledge of the manner and means by which automobiles were operated or controlled, and was, consequently, relying entirely on the knowledge and skill of Richey. In Article Fifteen of the petition it is specifically alleged that on approaching the railroad crossing where the accident occurred, Richey was driving at a speed of some sixty miles an hour and he did not stop nor slow down before crossing the railroad crossing, all in violation of common prudence, the laws of the road, and in violation of the provisions of Act No. 12 of the Louisiana Legislature for the year 1924, which law and rules require automobiles to stop within twenty feet before approaching the main line of a railroad track. It is further said that Richey was negligent in that he was not keeping a proper lookout and was driving the automobile at an excessive speed under the circumstances.

In Article Twenty-two, the plaintiffs allege that the Aetna Casualty & Surety Company insured the liability of Richey under its policy contract to the same extent as if the policy had been issued to him direct, and in his name. In support of their theory of liability on the part of Aetna Casualty & Surety Company, the plaintiffs have copied into this article of the petition certain paragraphs and clauses of the policy said to be pertinent to the issue.

The New Orleans, Texas & Mexico Railway Company and the Missouri Pacific Railroad Company filed exceptions of misjoinder of parties defendant. The two railway companies were by agreement subsequently dismissed as parties defendant in the suit, leaving the present parties defendant Mrs. Fannye Lea Richey, administratrix, Aetna Casualty & Surety Company, and Guy A. Thompson as trustee of the New Orleans, Texas & Mexico Railway Company in bankruptcy. For sake of brevity the New Orleans, Texas & Mexico Railway Company will be referred to as " Railway Company" ; Mrs. Richey as " Administratrix" ; and the Aetna Casualty & Surety Company as Insurance Company.

The Insurance Company filed an exception of no cause or right of action to the original petition and subsequently filed an exception of no cause or right of action to the supplemental petition filed by the tutor and Mrs. Violet Hardtner Blake. Defendant administratrix filed an exception of no cause or right of action to the supplemental petition. The Railway Company filed an exception of no cause or right of action to both the original and supplemental petitions. The exceptions filed by the Insurance Company to both the original and supplemental petitions were sustained by the lower court and the suit dismissed as to it. The exceptions filed by the administratrix to the supplemental petition were sustained by the lower court and the demands contained in the supplemental petition were rejected. The exceptions filed by the Railway Company were not submitted nor passed upon by the lower court.

Plaintiff was granted a devolutive appeal to this court from the judgment sustaining the exceptions of no cause and right of action filed by the Insurance Company and the administratrix.

We will first discuss the exceptions filed by both appellees to the supplemental petition of plaintiffs.

Henry E. Hardtner and S.L. Richey were both killed on August 7, 1935, in an accident in which the automobile, owned by Mr. Hardtner and being driven at the time by Mr. Richey, Mr. Hardtner occupying the front seat of the car with Mr. Richey, collided with a train owned and operated by defendant Railway Company. Plaintiffs filed this suit August 5, 1936. The original plaintiffs were Mrs. Juliette Doerr Hardtner, widow of the deceased Henry E. Hardtner, and Quintin T. Hardtner, appearing in his capacity as tutor for the use and benefit of the minor children of the deceased Hardtner, viz; Juliette Hardtner and Henrietta Hardtner. They allege that their husband and father came to his death as the result of injuries caused by the negligent acts of S.L. Richey, who was driving the automobile at the time of the accident, and the defendant Railway Company whose train collided with said automobile. One of the items of damages claimed by plaintiffs is set out in the petition as follows: " That your petitioners and the Estate of the said Henry E. Hardtner paid out as funeral expenses on account of the said Henry E. Hardtner the sum of $1100.00, which amount petitioners are entitled to recover from said defendant."

On March 11, 1937, while the suit was still pending on exceptions and before answer had been filed, a supplemental petition was filed in which it is alleged that Mrs. Hardtner, one of the original plaintiffs, had died, and made parties plaintiff the tutor of the minor Juliette and Henrietta Hardtner and a major daughter of the deceased, Mrs. Violet Hardtner Blake, who was not a plaintiff in the original petition, in lieu of the original plaintiff, Mrs. Juliette Doerr Hardtner. The supplemental petition claimed for Mrs. Violet Hardtner Blake an undivided one-sixth interest in the claim for funeral expenses in connection with the death of her father, and likewise substituted Mrs. Blake and Juliette and Henrietta Hardtner, through their tutor, plaintiffs claiming to have succeeded their mother, deceased, for such claim for damages as she originally had as the result of the death of her husband and their father.

The exceptions were correctly sustained insofar as they related to the claim of plaintiffs that they have succeeded their deceased mother for such claim for damages as she originally had as a result of the death of her husband, for the reason that an action for the recovery of damages for death sustained is a purely personal one and does not survive the death of the beneficiary designated by law (Article 2315 of the Civil Code),...