McNeese v. Brown

• Decision Date: 12 November 1963
• Docket Number: No. 5959,5959
• Parties: Olevia McNEESE v. Orell BROWN, Eugene Morris and Southern General Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 323

158 So.2d 323

Olevia McNEESE v. Orell BROWN, Eugene Morris and Southern General Insurance Company.

No. 5959.

Court of Appeal of Louisiana, First Circuit.

Nov. 12, 1963.

Rehearing Denied Dec. 16, 1963.

Seal, Mitchell & Lee, by Donald H. Lee, Robert T. Rester, Bogalusa, for appellant.

Talley, Anthony, Hughes & Knight, by John W. Anthony, Jim W. Richardson, Jr., Bogalusa, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LOTTINGER, Judge.

This case results from an automobile accident between a truck driven by Eugene Morris and owned by his employer, Orell Brown, and a 1953 Ford automobile owned by Mrs. Olevia McNeese. The petitioner filed suit against the defendants, Eugene Morris, the employee, Orell Brown, Morris' employer, and Southern General Insurance Company, Brown's insurer. The defendant, Orell Brown filed a third party demand against Southern General Insurance Company and Cutrer Insurance Agency, Inc. After trial on the merits, the Lower Court rendered judgment in favor of petitioner and against Orell Brown and Eugene Morris in the sum of.$757.67. The Court further gave judgment in favor of Southern General Insurance Company dismissing the suit as against it, and rendered a judgment in favor of Orell Brown and against Cutrer Insurance Agency for $757.56, less a credit of $148.16. The third party demand against Southern General Insurance Company was rejected by the Lower Court. The Cutrer Insurance Agency took a suspensive appeal. The plaintiff herein has appealed against the ruling in favor of Southern General Insurance Company.

The facts disclose that on April 7, 1961, Eugene Morris, while operating a 1959 Chevrolet, 2 ton pulp wood truck owned by his employer, Orell Brown, ran into the rear of a 1953 Ford automobile owned by Mrs. Olevia McNeese, the petitioner. This collision resulted in both property and personal damages to petitioner. There is no dispute with regard to the liability of the defendants as to the accident, the only serious question being as to whether or not there was any liability insurance involved.

The testimony shows that the Cutrer Insurance Agency, Inc. had insured all of Orell Brown's trucks for a number of years. Brown's trucks worked for Mr. and Mrs. Cecil Rester in the hauling of pulp wood, and Cutrer Insurance Agency, Inc., hereinafter referred to as Cutrer, was handling the liability insurance on the vehicles owned by a number of producers who worked with Mr. and Mrs. Rester. Cutrer would forward a bill for the insurance, and Mrs. Rester would periodically deduct certain amounts from the pay checks to the producers, and would periodically forward said amount to Cutrer to be applied to the various accounts of the producers. Cutrer was unable to write this particular liability insurance and so, acting as a broker, referred the matter to Tri-State General Agency, Inc. of Bossier City, Louisiana, who issued a policy on Orell Brown's truck with the Southern General Insurance Company.

The ledger sheet of Cutrer shows that as of January 20, 1961 the balance due by Orell Brown was in the sum of $438.60. On February 20, 1961 a payment of $40.00 was made on this account reducing the balance to $397.70, and on February 28, 1961 an additional payment of $125.00 was made, which reduced the balance to $272.70. The full amount of the sum due the insurance company was advanced by Cutrer Agency, and the balance due by Brown was carried by Cutrer on open account.

During the month of February, 1961 Mr. Cutrer spoke to Mrs. Rester about the insurance problems of Orell Brown and some other producers, and told her that he was no longer in a position to carry their balances, and that he was going to have their policies cancelled. Pursuant to that conversation he wrote Tri-State General Agency requesting that they send out notices of cancellation of the Orell Brown policies 'for non-payment of premium'...