Hight v. Stewart

• Decision Date: 27 June 1972
• Docket Number: No. 11887,11887
• Citation: 265 So.2d 640
• Parties: C. A. HIGHT, Plaintiff-Appellant, v. John David STEWART et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 640

265 So.2d 640

C. A. HIGHT, Plaintiff-Appellant, v. John David STEWART et al., Defendants-Appellees.

No. 11887.

Court of Appeal of Louisiana, Second Circuit.

June 27, 1972.

Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for plaintiff-appellant.

Mayer & Smith by Caldwell Roberts, Shreveport, for John David Stewart.

Snellings, Breard, Sartor, Shafto & Inabnett by George M. Snellings, Jr., Monroe, for Ranger Ins. Co.

Before AYRES, PRICE and HALL, JJ.

PRICE, Judge.

Plaintiff, C. A. Hight, brought this action against J. D. Stewart, dba Gerald Stewart Insurance Agency, and alternatively against Ranger Insurance Company, for damages allegedly due as the result of an airplane crash which occurred on August 8, 1970.

Plaintiff alleged that Stewart had failed to procure insurance coverage for the airplane, as plaintiff had requested, or to notify plaintiff of the lack of insurance coverage, and as a consequence, Stewart was liable to plaintiff for damages to the airplane. In the alternative, plaintiff alleged that Ranger was liable under an existing insurance policy issued to him by Ranger, which provided automatic insurance coverage for additional airplanes of which insured acquired ownership.

The trial court found for defendants and plaintiff appealed from that judgment.

The primary issues on appeal are: (1) Had plaintiff acquired ownership of the airplane at the time of the crash, so that it was automatically covered under the 'newly acquired aircraft' clause of plaintiff's existing insurance policy with Rangor? (2) Was defendant Stewart negligent in failing to inform plaintiff that the airplane was not covered by insurance, and did plaintiff act reasonably in assuming that he had coverage at the time the plane crashed?

Plaintiff operates an airport and owns Hight Flight Service in Minden. Part of his operation consists of renting airplanes. On August 6, 1970, he came into possession of a 1969 Cessna Skyhawk, No . N46445. On August 8, 1970, he rented this plane to Reese Hood, who made an emergency landing resulting in extensive damage to the plane .

FIRST ISSUE: Plaintiff contends that he purchased the plane from Loyd Brown, the registered owner shown on the Federal Aviation Agency records, prior to the crash.

According to the testimony given at trial by plaintiff and Brown, negotiations between them culminated in agreement upon a price for the airplane, prior to plaintiff's taking possession of the airplane on August 6, 1970. Plaintiff contends that this agreement constituted a sale of the airplane. If this trial testimony were the only evidence presented on the matter, it would seem that the transaction met the requirements of Civil Code Article 2456 which provides that a sale is perfected as between buyer and seller when an agreement is reached as to an object and a price. However, there was considerable evidence of contradictory statements made prior to trial by both plaintiff and the alleged vendor, Brown, which indicated that there was no sale at the time of the accident, but that one was only contemplated.

Five days after the accident, plaintiff gave a signed statement to a Ranger insurance adjuster which stated that plaintiff and Brown had entered into a lease agreement giving plaintiff an option to buy this airplane. There is also evidence that plaintiff told the Stewart Insurance Agency secretary, two days prior to the accident, that he had rented the airplane from Brown.

Loyd Brown had also made a prior statement under oath regarding the nature of his agreement with plaintiff which was inconsistent with his trial testimony. According to this affidavit, plaintiff had an option to purchase the plane If it were useful in his business, and both Brown and plaintiff felt that plaintiff Would buy the airplane.

If there is a conflict in the evidence, the reviewing court should not reverse the judgment of the district court where there is evidence in the record which, when reasonably construed, supports the conclusions reached by the district judge. Ware v. J. Ray McDermott & Co., 180 So.2d 573 (La.App.3rd Cir., 1965). The signed statements given by plaintiff and Brown shortly after the accident support the conclusion of the lower court that no sale of the airplane took place prior to the accident on August 8, 1970.

The evidence which plaintiff offered to show that plaintiff gave a note to Brown in the amount of Brown's equity in the airplane on August 19, 1970, and subsequently paid off that note, has no bearing upon the issue of ownership of the airplane on August 8, 1970.

SECOND ISSUE: The second issue for determination on appeal is whether defendant Stewart breached a duty to plaintiff when he failed to either obtain insurance for plaintiff, or to inform plaintiff that the airplane was not insured, and whether as a consequence of Stewart's conduct, plaintiff made a reasonable assumption that he had coverage.

The legal principles governing the duties of an insurance agent to his client are not in dispute. The parties agree that an insurance agent who undertakes to procure insurance owes an obligation to his client to use reasonable diligence in attempting to place the insurance and to seasonably notify the client if he is unable to obtain the insurance requested. Brown v. Stephens Buick Company, 139 So.2d 579 (La.App.4th Cir., 1962); ...