Leteff v. Maryland Cas. Co.

• Decision Date: 26 November 1956
• Docket Number: No. 4307,4307
• Citation: 91 So.2d 123
• Parties: Andrew L. LETEFF v. MARYLAND CASUALTY COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 123

91 So.2d 123

Andrew L. LETEFF v. MARYLAND CASUALTY COMPANY et al.

No. 4307.

Court of Appeal of Louisiana, First Circuit.

Nov. 26, 1956.

Rehearing Denied Jan. 2, 1957.

Writ of Certiorari Denied Feb. 25, 1957.

Taylor, Porter, Brooks, Fuller & Phillips, Durrett & Hardin, Baton Rouge, for appellant.

H. Alva Brumfield, Weber & Weber, Baton Rouge, for appellee.

ELLIS, Judge.

In the early morning of August 31, 1953 plaintiff was the guest passenger in a Plymouth station wagon owned by the father of defendant Leslie W. Ventress, Jr., who was driving at the time of the accident. The plaintiff suffered serious permanent injuries which will render him an invalid for the balance of his life.

This case is before this court upon the exception of no right of action which had been sustained by the lower court after hearing testimony. We held in effect that the testimony heard went to the merits of the case and, therefore, reversed the ruling of the lower court and remanded the case for a full trial. Accordingly the case was tried before a Jury and judgment was rendered in favor of the plaintiff and against the insurer of the defendant, Maryland Casualty Company, for $10,000, the limit of its policy, and $50,000 additional and in excess of the policy against the defendant Leslie W. Ventress, Jr.

From this judgment defendant Maryland Casualty Company has appealed suspensively and defendant, Ventress, has appealed devolutively in forma pauperis. Plaintiff has answered the appeal asking that the judgment be increased to $250,000.

The negligence of Ventress, Jr. is not disputed. It is shown that he and the plaintiff were returning from a trip to the formers camp near Acey, La., between one and two a.m. and at the time the plaintiff was asleep on the back seat. Ventress, Jr. had no complete memory after the accident of things that happened three or four hours prior thereto and not until fifteen days after his return home from the hospital. There were no eyewitnesses to the accident, however, the plaintiff plead res ipsa loquitur and the testimony of Trooper Gomez is more than sufficient for a positive finding of negligence on the part of Ventress, Jr. He testified:

'A. That morning at five minutes after two I received a radio call from Troop A, advising me that there was an accident just in front of the Casa Lobo Courts,--I believe that's 61--65--just about three miles south of the circle, and wanted to find who I wanted to assign to check. Well, I was near Gonzales and I told them I would come up and check it, and when I got to the scene which was at 2:35, which was approximately a half hour after I received the call, when I got there some ambulance, who I found out later on was the Baton Rouge Ambulance Service, had already arrived at the scene and picked up the injured parties.

'Q. What did you find there; what did your investigation disclose? A. We found a 1951 Plymouth Concord Convertible, which is a station wagon, that had run off the road three hundred and ninety-three feet. It hit an embankment and flew through the air an additional thirty-one feet and hit an oak tree, overturned and traveled an additional ninety-one feet. In explaining that through the air business, what I based that on was after the car hit the embankment until it hit the tree there were no tire marks, no track marks, anything, and then from the tree on to where the station wagon was was just debris and pieces of the car, shoes and so forth.

'Q. How far did you say that the car traveled off the road itself? A. Three hundred ninety-three feet before it hit an embankment.

'Q. How did you determine that? A. I measured it with a hundred foot Lumfkin ruler.

'Q. You actually measured it rather than step it off? A. Yes, it's the practice on a bad accident to measure, not step off.

'Q. And what type of marks were these? A. It wasn't exactly a rolling mark. It was more so a side skid mark showing that apparently the driver of this vehicle had gotten off the road and was attempting to try to get back on and kept sliding. The grass was chewed out and it was as if it a digging like.'

On the date of the accident Ventress, Jr., who was 22 years of age and single, was the owner of a 1950 Chevrolet 1/2 Ton pick up truck, which was insured in his name by Maryland Casualty Company with a limit of liability of $10,000 for injuries to any one person. The question in this case is whether the policy of the defendant Maryland Casualty Company covered Ventress, Jr. when driving his father's Plymouth.

The father of Ventress, Jr. was the owner of the 1951 Plymouth station wagon involved in the wreck which was insured in his name by Miller's Mutual Fire Insurance Company of Texas with a $10,000 liability limit for injuries to any one person. Millers Mutual paid its full limit of $2,000 under its medical payments coverage and also $10,000 under its bodily injury coverage for which it was given a release by the plaintiff but specifically all rights were reserved by plaintiff against Ventress, Jr. and Maryland Casualty Company.

With the above explanatory facts out of the way we now come to the meat in the coconut, viz., Maryland Casualty Company's defense to this case, which is a denial of any coverage under its policy. Maryland Casualty Company contends that as this policy was written to apply on Ventress, Jr.'s personally owned Chevrolet truck, that this coverage did not apply to the operation by Ventress, Jr. of his father's Plymouth station wagon because of a specific exclusion under the terms of its policy issued to Ventress, Jr. which specifically applied to the use of other automobiles by Ventress, Jr.

The policy language in question and which must be interpreted in arriving at a decision in this case is contained in 'Insuring Agreement V' on page 3 of the policy which insurance agreement and its exception, with unnecessary phraseology omitted, reads as follows:

'V. Use of Other Automobiles--If the named insured is an individual who owns the automobile * * *, such insurance as is afforded by this policy for bodily injury liability, * * * with respect to said automobile applies with respect to any other automobile, subject to the following provisions: * * *.

'(b) This insuring agreement does not apply:

'(1) to any automobile owned by, hired as part of a frequent use of hired automobiles by, or furnished for regular use to the named insured or a member of his household * * *;'

As stated by counsel for Maryland Casualty Company in its brief:

'Quite obviously, if Ventress, Jr. was driving his father's automobile at the time of the accident, his insurance policy issued by the Maryland would not apply under the provisions of the above quoted Insuring Agreement V, as modified by the exceptions to the 'Drive Other Cars Clause."

Counsel for plaintiff in his brief argues that

'One can read and re-read and then read again this conglomeration of suspended prepositions and no sensible meaning can be derived therefrom * * *.

'To begin with, the language 'to Any automobile' would exclude the very automobile that was being insured in the policy. Certainly the intention was not to insure an automobile and not insure it by this language, yet that is a reasonable interpretation.'

It is further contended that the evidence clearly shows that the Plymouth automobile was not furnished for the regular use of Ventress, Jr. and that the latter did not have the use of his father's automobile except by obtaining express permission and he only used it on occasions. He also contends that the words 'his household' are very ambiguous and uncertain in that one does not know whether such language means the named insured, Ventress, Jr.'s household or Ventress, Sr.'s household, and in conclusion argues that as the clause is 'ambiguous, uncertain, confusing, subject to many interpretations and meaningless' that it must be given an interpretation most favorable to the insured in accordance with the jurisprudence. American Mfg. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 203 La. 515, 14 So.2d 430; Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9; Haeueser v. Aetna Casualty & Surety Co., La.App., 187 So. 684; Hartford Accident & Indemnity Co. v. Collins, 5 Cir., 96 F.2d 83, certiorari denied 305 U.S. 627, 59 S.Ct. 89, 83 L.Ed. 401. Succession of Cormier, La.App., 80 So.2d 571.

Counsel for plaintiff relies upon the case of Travelers Indemnity Co. v. Pray, 204 F.2d 821, Sixth Circuit Court of Appeal, which is very similar factually to the case under consideration and involved the interpretation of the same exclusion clause, and in that case the Court held that the clause did not afford a defense as it was of ambiguous meaning and, therefore, was interpreted against the insurance company and in favor of the insured. This case will be discussed in detail later in this opinion, for at this time we are merely stating the contentions of Maryland Casualty Company and of the plaintiff with regard to the above quoted language of the policy in question.

The facts briefly stated which are necessary to a decision of this case are that Ventress, Jr. was 22 years of age, employed at Cololymer Corporation for approximately two years as a laboratory technician prior to the time of the accident. At the time of the accident he lived with his parents at 4948 Dickens Drive, Baton Rouge, and was unmarried. He and his mother and father had lived in this home for approximately a year and a half and although the legal title of the house at the time was in Ventress, Jr.'s name, this was done to obtain a longer term for the payments on the house.

On the date of the accident Ventress, Jr. owned a 1950 Chevrolet pick up truck and his father owned a 1951 Plymouth station wagon which Ventress, Jr. was driving at the time of the accident. Ventress, Jr. contributed to the house payments and household expenses but such contributions were not definite or fixed. Insofar as the use of the Plymouth...