Lincombe v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 30 July 1964
• Docket Number: No. 1207,1207
• Citation: 166 So.2d 920
• Parties: George B. LINCOMBE, Plaintiff and Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 920

166 So.2d 920

George B. LINCOMBE, Plaintiff and Appellee, v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al Defendant and Appellant.

No. 1207.

Court of Appeal of Louisiana, Third Circuit.

July 30, 1964.

Rehearing Denied Sept. 10, 1964.

Gist, Gist, Methvin & Trimble, by DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.

Cavanaugh, Hickman, Brame & Holt, by Meredith T. Holt, Lake Charles, for defendant-appellee.

Rogers & McHale, by Jack Rogers, Lake Charles, for plaintiff-appellee.

Before GRUGE , TATE and HOOD, JJ.

HOOD, Judge.

This is a tort action instituted by George B. Lincombe arising out of a motor vehicle collision which occurred on February 24, 1963.One of the automobiles involved in this collision was owned and was being driven by plaintiff and the other was owned by Sulphur Motor Company, Inc., and was being driven by Mrs. Hazel Grigsby.The suit was instituted against Mrs. Grigsby, State Farm Mutual Automobile Insurance Company and The Travelers Insurance Company.

Answers were filed by State Farm and by Travelers in each suit.Thereafter, each of these defendants, State Farm and Travelers, filed a motion for summary judgment in which motion each denied insurance coverage and for that reason demanded that the suit be dismissed as to it.These motions for summary judgment were tried and judgment was rendered by the trial court on January 2, 1964, granting the motion of Travelers and dismissing the suit with prejudice as to that defendant, but denying the motion for summary judgment filed in behalf of State Farm.

After the judgment was rendered, State Farm entered into a compromise settlement with the plaintiff, and in connection with that settlement plaintiff assigned to State Farm all of his claims and rights against Travelers.On a joint motion of plaintiff and State Farm, judgment was then rendered by the trial court dismissing the suit with prejudice as to State Farm and as to Mrs. Grigsby, but reserving all rights of 'plaintiff and/or his assignee' against Travelers.Judgment also was rendered by the trial court on the same day substituting State Farm as the plaintiff in this suit instead of Lincombe.State Farm then, as the assignee of Lincombe and as the substituted plaintiff, appealed from the summary judgment rendered by the district court on January 2, 1964, dismissing the suit as to Travelers.

A companion suit was instituted against the same defendants by Mrs. Mary Louise Adams, who was riding as a guest passenger in the Lincombe automobile at the time the accident occurred.Substantially the same pleadings were filed and similar judgments were rendered by the trial court in both of these cases, and the two suits have been consolidated for the purpose of trial and appeal.Judgment is being rendered by us in the companion suit on this date.SeeAdams v. State Farm Mutual Automobile Insurance Company, et al., 166 So.2d 926.

On Motion to Dismiss Appeal

After the records in the cases were lodged in this court Travelers filed a motion to dismiss the appeals, alleging as the principal grounds for that motion that the cause of action had been extinguished by confusion, that State Farm did not properly raise the issue of coverage as against Travelers, that another suit involving the same issues has been instituted by State Farm against Travelers which suit is now pending, and that the record does not contain sufficient evidence upon which this Court can dispose of the dispute between State Farm and Travelers.

An obligation is extinguished by confusion when the qualities of debtor and creditor are united in the same person.LSA-C.C. Article 2217.In the instant suit the record does not show that the qualities of debtor and creditor have been united in appellant, as contended by Travelers, so we conclude that the alleged debt has not been extinguished by confusion.

Plaintiff Lincombe alleges that 'Travelers is the public liability insurer of Hazel Grigsby and/or the automobile she was driving at the time of the said accident.'This allegation raises the issue of whether there was coverage under an insurance policy issued by Travelers, and since State Farm has been substituted as partyplaintiff in this suit we think the issue of coverage is before the Court.The fact that another suit involving the same issue was instituted by State Farm against Travelers after the judgment appealed from here had been rendered does not constitute grounds for dismissing this appeal.It is true that the record does not contain sufficient evidence upon which we can dispose of the dispute between State Farm and Travelers, but the case has never been tried on its merits and the parties have not been afforded an opportunity to present evidence.

For these reasons, we find no merit to Travelers' motion to dismiss these appeals and, accordingly, the motion to dismiss is denied.

On the Merits

It appears from the pleadings, affidavits and documents filed in the record that on and prior to February 11, 1964, Mrs. Grigsby owned a 1959 Chevrolet automobile.On that date, which was 13 days before the accident occurred, Mrs. Grigsby purchased a new station wagon from Sulphur Motor Company, Inc., and she traded in her 1959 Chevrolet as a part of the consideration for it.She delivered her 1959 Chevrolet to the motor company on that date, but the company did not have the station wagon which she wanted in stock so it was ordered for her.The Sulphur Motor Company then furnished her with a 1963Ford Galaxie automobile for her to use until her new station wagon came in.Mrs. Grigsby was driving this 1963 Ford automobile, which was owned by Sulphur Motor Company, when the accident occurred.The station wagon which had been ordered for her arrived and was delivered to her four days after the date of the accident.

At the time of the accident there was in effect a policy of insurance issued by State Farm to Mrs. Grigsby insuring her against claims for damages arising out of her use of 'the owned automobile or any non-owned automobile.'The 'owned automobile' is specified in the policy as being the 1959 Chevrolet which Mrs. Grigsby traded in for a new station wagon.State Farm contends primarily that no coverage at all was provided for Mrs. Grigsby under this policy while she was using the 1963 Ford automobile, because that vehicle was neither an 'owned automobile' nor a 'non-owned automobile,' as those terms are used in the policy.State Farm further contends, in the alternative, that any insurance which may be afforded under its policy is only 'excess insurance,' over and above that afforded by other valid and collectible insurance, and that in this case State Farm is not liable because insurance coverage for more than the amount claimed is provided by Travelers.

There also was in effect at the time of the accident an insurance policy issued by Travelers to Ed Taussig Ford, Inc., which policy also covered the operations of Taussig's subsidiary, Sulphur Motor Company, Inc.Under the provisions of this policy Travelers insured against claims for personal injury and property damage any person while using an owned automobile with the permission of the named insured.The 1963 Ford automobile which had been loaned to Mrs. Grigsby was owned by the named insured, it was being used by her with the permission of the owner, and Mrs. Grigsby clearly was an insured under that policy while she was using that car.

Travelers points out, however, that the policy which it had issued provides coverage for the driver of an owned automobile 'only if no other valid and collectible automobile liability insurance, either primary or excess * * * is available to such person.'It contends that the policy which it had issued covering the 1963 Ford is not effective and provides no insurance coverage at all for Mrs. Grigsby, because other valid and collectible automobile liability insurance (the State Farm policy) is available to her.

The trial judge concluded that Mrs. Grigsby was an insured under the State Farm policy at the time of the accident, and that the policy issued by State Farm provided primary coverage for her while she was driving the 1963 Ford automobile.The court further held that since other valid and collectible automobile liability insurance (provided by the State Farm policy) was available to Mrs. Grigsby, then the policy issued by Travelers was not applicable and provided no coverage here.A summary judgment accordingly was rendered by the trial court dismissing the suit as to Travelers.

We will consider first the question of whether the automobile which Mrs. Grigsby was driving at the time of the accident was an 'owned automobile' or a 'non-owned automobile,' within the meaning of the State Farm policy, and thus whether insurance coverage was provided by that policy in connection with this accident.

According to the policy the term 'owned automobile' includes a temporary substitute automobile.A 'temporary substitute automobile' is defined in the policy as:

'* * * any automobile or trailer, not owned by the named insured, while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.'

We agree with State Farm that the Ford automobile which Mrs. Grigsby was driving at the time the accident occurred was not a 'temporary substitute automobile,' as that term is used in the policy, because the owned automobile, that is, the 1959 Chevrolet, had not been withdrawn from normal use because of its breakdown, repair, servicing, loss or...