Janvier & Co., Limited v. Fritz
| Decision Date | 04 April 1938 |
| Docket Number | 16843 |
| Citation | 180 So. 172 |
| Parties | JANVIER & CO., Limited, v. FRITZ et al |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing denied 180 So. 444.
Theo. Cotonio, of New Orleans, for appellants.
Curtis Hall & Foster and Chas. A. Kyle, all of New Orleans, for appellee.
This is a suit bye Janvier & Company, Ltd., against O. C. Fritz and Mrs. Ignatio Feleti, for the balance due on certain insurance premiums in the sum of $ 195.27. Petitioner alleges that Fritz and Mrs. Feleti were partners engaged in business as building contractors, and that in the course of its business as a general insurance agency it "sold and issued to defendants various policies of workmen's compensation and public liability insurance covering defendants in connection with building contracts." An exception of vagueness was filed in connection with defendants' answer in accordance with the rules of the First city court in which the suit was brought. The answer denied the issuance of the policies and also denied that there was any partnership existing between the defendants. It was admitted that O. C. Fritz was a building contractor and that, as such, from time to time, he needed and obtained bonds through the plaintiff which required an indemnitor, and that Mrs. Feleti bound herself in that capacity in connection with certain building contracts which Fritz had undertaken and for which a contractor's bond had been obtained through plaintiff's office.
Following a trial below, there was judgment in favor of plaintiff as prayed for and against the two defendants jointly (the prayer of the petition asked for a judgment in solido). The case was appealed suspensively to this court, where an exception of no cause and of no right of action was filed based upon the contention that an agent for an insurance company cannot maintain an action in its own name for a premium due its principal. Since this exception was filed in an appellate court, after the record had been made up, it must be considered in connection with the allegations and proof in the record as distinguished from a similar exception filed in limine which is addressed to the allegations of the petition alone.
Considering the exception in that light, we find that the pertinent allegations of the petition are to the effect that the plaintiff is a general insurance agency and, as such, sold and delivered certain policies to defendants. There is nothing in the record which qualified or enlarged upon this statement in the petition no allegation and no proof that plaintiff had paid its principal, which is shown to be the Travellers Insurance Company, the amount of the premiums sued for or that it is in any way responsible for their payment.
In Corpus Juris, vol. 33, p. 67, we find the following:
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Page v. Marcel
... ... In Michel, Secretary of State, v. Southern Ins. Co., (Tyler Canning & Pickling Co., Intervenor) In re Whitney Central Trust & ... In the case of Janvier & Company v. Fritz, La.App., 180 So. 172, 173, in which there was an ... ...
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Pflieger v. Haws
...objection, it has effect of enlarging the pleadings and may be considered as through written in the petition.' Again, in Janvier & Co. v. Fritz, 180 So. 172, Orleans, now Fourth Circuit Court of Appeal, followed the rule when it held that an exception of no cause and of no right of action, ......
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Cypress Ins. Agency, Inc. v. Aqua Blast Service Co., Inc.
... ... Perrin v. Saunders, 198 So.2d 555 (La.App. 4th Cir. 1967); Janvier & Co., Limited v. Fritz, 180 So. 172 (La.App.Orl. Cir. 1938). cf. 44 C.J.S. Insurance § 358(e) ... ...
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Globe Indem. Co. v. Leesville Contracting Co., 98
... ... Janvier and Company v. Fritz, La.App.1938, 180 So. 172, 444; Page v. Marcel, La.App.1950, 44 So.2d 363; ... ...