Jackson v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 03 October 1947 |
| Docket Number | 2917. |
| Citation | 32 So.2d 52 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | JACKSON et ux. v. STATE FARM MUT. AUTOMOBILE INS. CO. |
Rehearing Denied Nov. 21, 1947.
Writ of Certiorari Denied Dec. 15, 1947.
Brumfield & Hebert and J. Elton Huckabay, all of Baton Rouge, for appellant.
Watson Blanche Fridge & Wilson, of Baton Rouge, for appellees.
This case was once before submitted to this court and was disposed of on a special defense pleaded by the defendant liability insurance carrier and based on the fact that the written notice of the occurrence of the accident which gave rise to the plaintiffs' cause of action had not been given as soon as practicable after the accident, as required under the terms of the policy sued on. See La.App., 23 So.2d 765. The Supreme Court thereafter reviewed the decision of this court on a writ of certiorari, reversed the holding on the special defense and remanded the case to the district court for trial on the merits. See 211 La. 19, 29 So.2d 177. The case had actually been tried on the merits at the original hearing in the district court and all that remained to be done by that court was to decide the question of negligence, vel non, of the driver of the insured automobile in having run over and killed a child. The trial judge resolved that issue in favor of the plaintiffs, parents of the child, and awarded judgment in favor of each in the sum of $3500. The present appeal is from that judgment.
The case, as will be recalled from the former opinions, is a very unfortunate one in which a child sixteen months old was killed by an automobile driven by its uncle, Carl E. Toler when he was backing out of the garage in a private yard. Mr Toler occupied a room in the same house in which the child's parents lived. In fact it was his own house and they all lived together under some arrangement which apparently was mutually satisfactory to them all in so far as any charges for rent and for board and lodging were concerned. This living arrangement between them formed the basis of another special defense which had been urged by the defendant under the policy which it had issued.
When the case was first before him, the trial judge, in his written opinion, stated that under the facts adduced, the principle under which the defendant sought to be released on the ground that the uncle and the parents were members of the same household and which provided one of the exceptions in the policy, could not be applied. That point is not urged before us now and even if it were we would be inclined to agree with the trial judge that their mere living together under the circumstances shown, did not make the parties members of the same household under which defendant could be relieved of liability under the exception as claimed by it.
The trial judge has written a very thorough and comprehensive analysis of the testimony regarding Mr. Toler's negligence and necessarily, manifest error would have to appear in his finding of facts in order for this court to reverse the judgment rendered by him.
There are some features of the case which are similar to some of those that appeared in the case of Comer v. Travelers Ins. Co., 27 So.2d 438, recently decided by this court and in which, we understand, the Supreme Court has granted writs of review.
Both cases involve the running over of a child of about the same age, by an uncle who lived in the same household with the child's parents. Without going into any detailed analysis of all the facts in each, we find this important and controlling difference between them: In the Comer case there was no proof that children were accustomed to playing in the vicinity of the driveway over which the car was being backed, whereas in this case Mr. Toler himself admits that they did and that he was aware of it. For that reason therefore he was called upon to take greater precautions than Rev. Van Dyke, the driver of the car in the Comer case was called on to take and yet the reverse of things is what happened. In the Comer case the driver seemed to have been extra precautious in looking to see if the child was following him or had come down from the porch...
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