Kikendall v. American Progressive Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: LANIER
• Citation: Kikendall v. American Progressive Ins. Co., 457 So.2d 53 (La. App. 1984)
• Decision Date: 31 July 1984
• Parties: Helen Smith KIKENDALL v. AMERICAN PROGRESSIVE INSURANCE COMPANY. 83 CA 0979.

Page 53

457 So.2d 53

Helen Smith KIKENDALL v. AMERICAN PROGRESSIVE INSURANCE COMPANY.

83 CA 0979.

Court of Appeal of Louisiana First Circuit.

July 31, 1984.

Elaine W. Guillot, Slidell, for plaintiff-appellee.

Albert Dale Clary, Baton Rouge, for defendant-appellant.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This is a suit in contract by an insured against her insurer seeking to recover the loss suffered from the theft of her vehicle and for statutory penalties for arbitrary failure to pay the claim. After a trial, the district court rendered judgment awarding the insured $9,000 for the loss of her vehicle and awarded statutory penalties that included an attorney fee of $1,500. The insurer took this suspensive appeal.

FACTS

Helen Smith Kikendall was the owner of a tan 1981 Toyota pickup truck. Her son, Tommy, was the principal driver of the vehicle. The vehicle was insured on August 20, 1981, under a policy of insurance (which was in full force and effect at all times pertinent to this suit) issued by Progressive American Insurance Company (Progressive) through its agent, Floyd Fogg Insurance Agency, Inc. On August 24, 1981, Mrs. Kikendall reported the theft of the truck to the police and the agent of her insurer.

On October 13, 1981, a pickup truck was discovered by Staff Sergeant Robert Arthurs, St. Tammany Parish Sheriff's Department, in a wooded area near the Fish Hatchery Road near Lacombe, Louisiana. The vehicle was stripped and burned. It was later identified as the vehicle reported stolen by Mrs. Kikendall.

PROOF OF THEFT

The trial court found as a fact that the vehicle had been stolen. Progressive contends that the district court was clearly wrong in this finding. Specifically, appellant argues that this factual finding is not supported by credible testimony.

In the instant case, all of the evidence was presented by live testimony. This court, in Gould v. State, Louisiana Department of Corrections, 435 So.2d 540, 543 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1107 (La.1983), discussed the standard of review applicable to factual findings based on live testimony as follows:

As to facts, Canter v. Koehring Company, 283 So.2d 716 (La.1973), as refined by Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), delineates our review of facts as first an ascertainment that there is in the record 'a reasonable factual basis' for the trial court's factual findings and second a determination from the record that the trial court's factual findings are not 'clearly wrong.' Then, if we, as an intermediate appellate court, find a reasonable basis for the factual findings and such findings are not clearly wrong (or manifestly erroneous), we are admonished not to disturb such findings of fact.

The basis for the Canter-Arceneaux rule is that the trier of fact, actually hearing and observing the witnesses give live testimony, is in a better position to evaluate credibility than a reviewing court on the intermediate appellate level, which at best can only study the written words of a cold record. Stated another way, according to Canter-Arceneaux, where there is a credibility issue or conflict in the testimony and the trial judge (trier of fact) has had the opportunity to observe the demeanor of the witnesses as they testify and to listen to the nuances of their oral testimony, great weight must be given to the factual conclusions of the trier of fact and they should not be disturbed unless clearly wrong.

Progressive presented three witnesses at trial who were in the Fish Hatchery Road area on Sunday afternoon, August 23, 1981: Martin Giordelli, Mike Cousin and John Cousin, Jr. All three were in the area around 2:00 p.m. attempting to pull out John's truck which had gotten stuck in the mud earlier that day. They all testified that they saw two Toyota pickup trucks, one black and one tan (or beige), in the area that Sunday afternoon. Both vehicles were occupied by two young white males in their late teens or early twenties. They saw both vehicles get stuck in the mud. Giordelli and Mike Cousin testified that they saw the tan truck again three or four weeks later in the same area burned and stripped.

Tommy Kikendall testified that he used the Toyota truck to get to work at his parent's gas station at 9:00 a.m. Sunday, August 23, 1981. He remained at work until 5:00 p.m. when his father picked him up. The truck was left overnight on the left side of the station for repairs. When he arrived at work at 7:00 a.m. the next day, the truck was gone. Upon discovering the theft, he called his parents. Tommy also testified that he personally knew other people who owned trucks similar to his and that there are "numerous trucks like that around Slidell."

Melanie Rosano, a friend of Tommy for six years, testified that she went by the station on Sunday around 12:30 p.m. Tommy was there and she saw the truck parked on the left side of the station. She stayed around 45 minutes. When she left, the truck was still parked at the station.

Cherry Kikendall, Tommy's wife (married December 11, 1982), testified that she ate lunch with Tommy on Sunday around 1:00 p.m. She also saw the truck parked on the left side of the station.

After reviewing the evidence, we find that there is a reasonable factual basis in the record to support the district court's ruling that the vehicle was stolen. The district court was not clearly wrong in finding that the truck was stolen or that Progressive failed to show that the Kikendalls caused the demise of the truck. This assignment of error is without merit.

ADMISSIBILITY OF PHOTOGRAPHIC LINEUP

Detective Charles Edwards, Slidell Police, was assigned to investigate the reported theft. He was informed by Sergeant Arthurs that several witnesses had spotted a truck similar to the missing truck on Sunday afternoon, August 23, 1981, in the area where it was eventually recovered. Detective Edwards interviewed one of those witnesses, John Cousin, Sr., (John Cousin, Jr. was also a witness) in the presence of Carl Ellis, a Progressive claim representative. Detective Edwards showed Cousin a photographic lineup. One of the pictures included in the lineup was of Tommy Kikendall. Cousin identified Tommy Kikendall as one of the persons he saw in the tan truck on the Fish Hatchery Road area that Sunday afternoon.

Progressive attempted to offer into evidence the photographic lineup. Kikendall objected asserting that Cousin, Sr. should be the one to testify concerning the lineup identification and not Detective Edwards. Progressive argued that the evidence was admissible because Cousin, Sr. was deceased. The trial court allowed the evidence to be introduced subject to the objection.

Progressive contends on appeal that the trial court did not rule on the admissibility of this evidence at trial and, after receiving the post-trial memorandums, apparently disallowed this evidence because no mention of it was made in reasons for judgment. Progressive contends that the district court erred in not considering this evidence.

Hearsay evidence is generally described as testimony in court, or written evidence, of a statement made out of court, the statement being offered to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter. State v. Hayes, 414 So.2d 717 (La.1982); State In Interest of Clark, 400 So.2d 334 (La.App. 4th Cir.1981). Such evidence is generally inadmissible as being unreliable because it is based on statements made by persons who are not before the court, have not been sworn and are not available for cross-examination. Lasalle Pump & Supply Co., Inc. v. Louisiana Midland Railroad Co., Inc., 433 So.2d 745 (La.App. 3rd Cir.1982), writ denied, 435 So.2d 450 (La.1983); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980). There are well-recognized exceptions to the hearsay rule. Declarations by a deceased person which are admissible as exceptions to the hearsay rule are dying declarations, statements against interest and, in limited instances, statements pertaining to family history, relationship and pedigree. Miller v. Miller, 226 La. 273, 76 So.2d 3 (1954); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3rd Cir.1983), writs denied, 443 So.2d 591, 592 (La.1983); Baker v. Life General Security Insurance Company, 405 So.2d 1162 (La.App. 1st Cir.1981); D. Binder, The Hearsay Handbook (1975); McCormick's Handbook of the Law of Evidence (E. Cleary 2nd ed. 1972). ¹

In the instant case, Progressive attempted to introduce the evidence to show the truth of matters asserted, i.e., that Tommy Kikendall was in a tan pickup truck on Sunday afternoon in the Fish Hatchery Road area where the Kikendall truck was eventually found. Detective Edwards' testimony concerning Cousin Sr.'s identification of Tommy Kikendall is hearsay. The statements made by Cousin, Sr. to Detective Edwards concerning the photographic lineup identification do not come within any of the hearsay exceptions applicable to declarations by a deceased person. Accordingly, Detective Edwards' testimony concerning statements made to him by Cousin, Sr. is inadmissible hearsay. This specification of error is without merit.

VALUE OF VEHICLE

Mrs. Kikendall completed and mailed to Progressive an "AFFIDAVIT OF VEHICLE THEFT" in which she claimed $10,568.65 for the theft of her vehicle. ² The insurance policy issued by Progressive contained the following coverage for theft of the vehicle:

PART III--PHYSICAL DAMAGE

Coverage D--Comprehensive. To pay for direct and accidental loss of or damage to the automobile due to any cause, except collision or upset. For the purposes of this coverage it is understood that damage caused directly by tornado, cyclone, windstorm, hail, any falling object, and damage resulting from theft, breakage of glass, earthquake, explosion, riot, insurrection or civil commotion, shall not be deemed a loss caused by collision or upset.

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