Howard v. Early Chevrolet-Pontiac-Cadillac, Inc.

Decision Date07 February 1963
Docket NumberNo. 9883,INC,CHEVROLET-PONTIAC-CADILLA,9883
Citation150 So.2d 309
PartiesJames C. HOWARD, Plaintiff-Appellee, v. EARLY, et al., Defendants-Appellants.
CourtCourt of Appeal of Louisiana — District of US

Davenport, Farr & Kelly, Monroe, for Early Chevrolet-Pontiac-Cadillac, Inc., American Hdw. Mut. Ins. Co., and American can Hdwe. Mut. Ins. Co.

Waltman & Napper, Ruston, for Early Chev.-Pontiac-Cadillac, Inc., in third-party petition.

Barham, Wright & Barham, Ruston, for James C. Howard.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for Aetna Cas. & Surety Co.

Before HARDY, GLADNEY and AYRES, JJ.

GLADNEY, Judge.

Plaintiff's suit seeks recovery of damages ex delicto, and, in the alternative, workmen's compensation, as a result of injuries received in a fall sustained August 27, 1957, on the premises of an automobile agency in Ruston, Louisiana. Made defendants are Early Chevrolet-Pontiac-Cadillac, Inc., American Hardware Mutual Insurance Company, and Aetna Casualty & Surety Company. These defendants are hereinafter identified as Early, American and Aetna. American and Aetna are insurers respectively for Early as to liability and workmen's compensation.

In the judgment rendered on April 10, 1962, Howard was awarded damages of $26,968.78 against American and denied his claim for workmen's compensation against Aetna. The decree also rejected the demand of American against Early interposed in a third party petition. Orders of devolutive and suspensive appeal were perfected on behalf of Early and American. The plaintiff has answered the appeal, asking for an increase in the award in his favor.

The business of Early was entirely owned by Mrs. Howard, the wife of plaintiff, who is professionally known as Mrs. Early, her married name prior to her marriage with plaintiff. She is the corporation's president and active in its management. She also owns a farm and dairy located several miles from Ruston that is operated by her husband.

On the morning of August 27, 1957, Howard, accompanied by an employee of the dairy, Robert M. Bingaman, went to the office of the Early corporation for a social visit. While there Mrs. Early requested her husband to remove several 2 x 4's from the roof of a small frame building immediately behind the office for the purpose of constructing some parts bins which were needed. At that time a portion of the covering of the roof of the building had been removed in furtherance of a plan of Mrs. Early to demolish this structure which was of sound construction. It contained a concrete floor and a ceiling built of shiplap lumber nailed to the joists from below. The ceiling was approximately eleven or twelve feet from the floor.

In compliance with his wife's request, plaintiff obtained tools belonging to the corporation, entered the building and climbed into the attic through an opening in the ceiling. He had succeeded in detaching several 2 x 4's and was prizing with a crowbar when he suddenly fell through the ceiling to the concrete floor below, sustaining the injuries of which he complains.

Previously a lessee, M. S. Carroll Company, Inc., installed attic fans in this same building. When Mrs. Early purchased the property on July 26, 1956, she knew the attic fans belonged to the lessee. When the lessee was preparing to vacate the building several months later, it informed Mrs. Early the attic fans would be removed and that the holes created by their removal would be covered. On numerous occasions Mrs. Early visited the building and noticed that the openings where the fans had been, were covered, although she testified she did not know the type of material used to cover the holes. When Mrs. Early asked her husband to remove the 2 x 4's, she failed to warn him of the fact that the ceiling had been altered. Actually, it appears that the openings were covered over with a fibrous material, either celotex or something similar.

Howard gave the following account of his activity in the building: that he could see quite clearly; that he observed with care the entire ceiling which appeared to be safe, but it was covered with dust and dirt and he was unable to recognize or detect any variation in the floor; and that he had walked across some twenty feet of the floor before it suddenly gave way beneath him and he fell feet first on the concrete floor. The opening through which plaintiff fell was approximately three feet square.

Following plaintiff's accident notice was not given to the insurer until August 23, 1958, almost one year later. Shortly after the accident demolition of the building in which plaintiff sustained his injuries was completed. It was in the process of demolition at the time of the accident. Howard testified the thought never occurred to him that he had a claim for damages and that it was the first time he had ever performed any service on the business premises for his wife. He regarded his act simply as one of accommodation. Mrs. Early testified that because of the unusual circumstances it had never occurred to her that the policy covered the accident sustained by her husband, and that she first discovered the possibility of a claim on August 23, 1958, when she was discussing general insurance matters with R. B. Sims, an insurance agent, and that he informed her plaintiff might be covered under one of the policies which she carried. The statement of Mrs. Early was corroborated by Sims. The liability policy issued by American to Early contained the following clause, listed as a condition to coverage:

'When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'

The issue first presented is whether the delayed notice of the occurrence of the accident has affected the rights of the injured party and should the court deny that it has, then the question arises as to whether American is entitled to obtain a judgment against Early for reimbursement of any amount it is forced to pay Howard. American has asserted this defense against Howard through its exception of no cause and no right of action, and has also raised by third party petition virtually the same legal question against its assured, Early. American contends that Early breached the terms of the quoted provisions of the insurance contract, due to its failure to notify American until eleven months and twenty-six days after the accident. It argues it was prejudiced by this dilatory conduct for when it received the notice of the claim, the building in which the accident occurred had been demolished. Thus, it asserts it was prevented from viewing the building, taking photographs and securing other data by which it may have avoided liability. The trial judge resolved both facets of the question of delayed notice against American.

Under the ruling of West et ux. v. Monroe Bakery, Inc. et al., 217 La. 189, 46 So.2d 122 (1950) the issue raised by American against Howard is plainly answered. The decision held that by the public policy of the state, as expressed in Act 55 of 1930, where an injured third person is not at fault, he does not lose his right or cause of action regardless of a stipulation to the contrary between the insurer and the insured in the policy contract with reference to delayed notice of the accident. The Supreme Court's opinion, written by Justice Moise, reviewed at length the jurisprudence of this state and the decision has been repeatedly followed. Nonetheless, there were dissents by Justices Hawthorne, McCaleb and LeBlanc, who reasoned that the majority opinion had failed to take into consideration that under Act 55 of 1930, the act specifically resticted the right of the injured party and made it subject to all lawful conditions of the policy contract and to the defenses which could be urged by the insurer in a direct action brought by the insured. The decision in West v. Monroe Bakery, Inc. effectively disposes of an...

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14 cases
  • Christ v. State Through Dept. of Highways
    • United States
    • Court of Appeal of Louisiana — District of US
    • 18 Febrero 1964
    ...as constituting an abuse of the large discretion of the trier of fact in such matters. See, e.g., Howard v. Early Chevrolet-Pomiac-Cadillac, Inc., La.App. 2 Cir., 150 So.2d 309; Broussard v. Savant Lbr. Co., La.App. 3 Cir., 134 So.2d 369; Fullilove v. United States Casualty Company of New Y......
  • Gaspard v. Travelers Ins. Co.
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    • 15 Octubre 1973
    ...176 So.2d 672 (La.App.4th Cir. 1965); Jack v. Sylvester, 150 So.2d 789 (La.App.3rd Cir. 1963); Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So .2d 309 (La.App.2nd Cir. 1963); McDonald v. Ouachita Commercial Insurance Agency, Inc., 129 So.2d 296 (La.App.2nd Cir. 1961); Hano v . Kinc......
  • Lewis v. Bellow
    • United States
    • Court of Appeal of Louisiana — District of US
    • 2 Julio 1968
    ...and thus no employee-employer relationship, a prerequisite to recovery of compensation benefits. Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So.2d 309 (La.App.2nd Cir. 1963); Mire v. Adams, 55 So.2d 787 (La.App.1st Cir. 1951); Alexander v. J. E. Hixson & Sons Funeral Home, 44 So.2......
  • McDermott v. CROWN ZELLERBACH CORPORATION
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    ...See also Jackson v. State Farm Mutual Automobile Insurance Company, 1946, 211 La. 19, 29 So.2d 177; Howard v. Early Chevrolet-Pontiac-Cadillac, Incorporated, La.App.1963, 150 So.2d 309. Iterating the injured third party's insulation from the insured's defaults when asserting a direct action......
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