Peterson v. Armstrong

• Decision Date: 02 June 1965
• Docket Number: No. 1419,1419
• Citation: 176 So.2d 453
• Parties: Ellzabeth Ann PETERSON et pere, Plaintiffs-Appellants-Appellees, v. Charles R. ARMSTRONG et al., Defendants-Appellees-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 453

176 So.2d 453

Ellzabeth Ann PETERSON et pere, Plaintiffs-Appellants-Appellees, v. Charles R. ARMSTRONG et al., Defendants-Appellees-Appellants.

No. 1419.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1965.

Rehearing Denied June 24, 1965.

Thomas & Friedman, by Gerard F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.

Gist, Gist, Methvin & Trimble, by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants U.S.F. & G.

Mayer & Smith, by Alex F. Smith, Jr., Shreveport, for defendants-appellants Traders & General and Charles R. Armstrong.

Bodenheimer, Looney & Jones, by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellee Central Mutual.

Blanchard, Walker, O'Quin & Roberts, by Wilton H. Williams, Jr., Shreveport, for defendant-appellee, Traders Indem. Co.

Before TATE, FRUGE , and SAVOY, JJ.

TATE, Judge.

This suit result from a headon collision involving automobiles driven respectively by Charles Armstrong and by Sidney Lucius. To recover for the injuries thereby sustained, the plaintiff Miss Peterson, a passenger in the Lucius vehicle, sues (1) Armstrong, (2) certain liability insurers allegedly responsible for his negligence ('Traders and General', 'Travelers', and 'U.S.F. & G.'); and (3) the liability insurer of Lucius's operation of his automobile ('Central'). There other of Lucius's passengers filed similar suits, which were consolidated with the present for trial and appeal.

The trial court rendered judgment against all defendants, and all except Central on appeal deny liability. (Central deposited policy limits after adverse judgment and did not appeal). The four plaintiffs either appealed or answered the defendants' appeals to request an increase in the awards.

In the present opinion, we will discuss the issues common to all four consolidated appeals. Quantum will be discussed separately in each of the consolidated actions, our decisions in the companion suits being rendered this date: Goss v. Armstrong, 176 So.2d 462; Mogg v. Armstrong, 176 So.2d 463; Ponselle v. Armstrong, 176 So.2d 464.

The trial court judgment.

The trial awards to the four plaintiffs totalled nearly twenty-six thousand dollars for their personal injuries. (No property damage is involved.) The trial court held solidarily liable for this amount both Armstrong and his insurers (U.S.F. & G., Traders, and Travelers) and Central as the insurer of Lucius (who himself was not impleaded), subject to policy limits of coverage of these insurers. All of the insurers had issued '5/10/5' coverage, ¹ except Travelers, which had issued 10/20/5 coverage.

U.S.F. & G. was held liable as the primary insurer of the Armstrong-driven vehicle up to its policy limits of ten thousand dollars, while Central was likewise held liable up to its policy limits in the same amount as the primary insurer of the Lucius vehicle. As Armstrong's insurers, Travelers and Traders were held secondarily liable as excess insurers for the approximately six thousand dollars recovery in excess of these policy limits, with the excess liability being divided equally between these two excess insurers.

Issues.

There is no really substantial issue as to the concurring negligence of Armstrong and Lucius, the two drivers. Both vehicles collided headon at the crest of a hill. Each vehicle was in the middle of the gravel road, rather than on its proper side of it. Without detailed discussion, we will simply state that we find no error in the trial court's determination that the accident resulted from the concurring negligence of both drivers. See Cormier v. Traders & General Ins. Co., La.App. 3 Cir., 159 So.2d 746, certiorari denied as to liability (although granted as to quantum, see 245 La. 806, 161 So.2d 279; also, 246 La. 976, 169 So.2d 69); Duhon v. Harkins, La.App. 3 Cir., 152 So.2d 85.

Aside from quantum, the principal issues of these consolidated appeals are: (1) Is the defendant U.S.F. & G. liable as an omnibus insurer of the car driven by Armstrong? (2) If so, what is the proper method of apportioning between Traders and Travelers the damages for which they are liable as the excess insurers of the vehicle driven by Armstrong?

These issues involving these insurers arise in the following context:

The vehicle driven by Armstrong was owned by J. R. Bennett, the father of a college friend. U.S.F. & G. had issued Bennett a liability policy insuring operation of the Bennett vehicle while being used with Bennett's consent. (A substantial issue of this appeal is whether Armstrong's use of the Bennett vehicle was covered under this 'omnibus' coverage.)

Armstrong's negligent operation of any non-owned automobile (such as the Bennett vehicle) was also insured by his own family's insurance policies, issued respectively by Traders and by Travelers. In the event of such coverage under the 'drive other car' clause, however, each of these Armstrong policies contained a provision that, if other (primary) insurance covered Armstrong's operation of the non-owned automobile, then that the Armstrong policies should be excess insurance (i.e., not available to pay the damages until exhaustion of primary insurance policy limits). If U.S.F. & G. is held under its omnibus clause to have afforded coverage to Armstrong while using the Bennett car insured by it, then Traders and Travelers are excess insurers, and the other substantial question of this appeal arises: Should the excess recovery be divided equally between these insurers, or should it instead be prorationed in proportion with the respective policy limits (in which case Travelers would pay twice as much of the excess as Traders, since its policy limits were twice those of Traders)?

1. Liability (coverage of U.S.F. & G. as omnibus insurer of Bennett Oldsmobile).

One of the two automobiles involved in the headon collision was a 1959 Oldsmobile owned by J. R. Bennett of Alexandria. It was driven at the time of the accident by the defendant Armstrong, who had been loaned the car by Bennett's son, Kent. U.S.F. & G. makes a strong contention that there was no coverage of the insured automobile in favor of the driver, Armstrong, because the insured's son Kent had been expressly forbidden to let anyone else drive his parents' car while it was entrusted to his use.

The liability policy insuring the Oldsmobile issued to Bennett by US.F. & G. provided that, with respect to such owned automobile, the coverage would include the named insured and any resident of his household, and also, as an omnibus insured, 'any other person using such automobile, Provided the actual use thereof is with the permission of the Named Insured.' Under the policy definitions, the named insured was J. R. Bennett and his wife.

Under the current jurisprudence, only the named insured and his wife may constitute one a permittee and thus afford him coverage; if an original borrower turns over the possession of the vehicle to a second permittee, this second permittee is not considered as using the car with the permission of the named insured, unless, either expressly or by implication, the initial permission included the named insured's consent for the first permittee to allow third persons to use the insured vehicle. Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734; Coco v. State Farm Mut. Auto. Ins. Co., La.App. 3 Cir., 136 So.2d 288; Comment, 22 La.L.Rev. 626 (1962).

The present facts show:

Kent was a college senior, twenty-two years of age at the time of the accident. The Bennetts lived in Alexandria, but Kent attended college in Natchitoches, some fifty miles distant. The Bennetts owned two automobiles.

Every four or five weeks during his senior year (and less often during his previous college years), Kent was allowed to take back and use one of the cars at college until his return home in a week or so. When the accident occurred, some two weeks before Kent's graduation, he had brought the car with him to college two weekends before, and he had been using it at school for nine days prior to the accident. Tr. 549.

On the day of the accident, Kent and Armstrong, together with a Miss Bray and some other students, had gone on a swimming picnic together at a nearby national park. When they returned to the college, they discovered that Miss Bray had left behind a borrowed bathing cap. Since Kent had to attend a banquet that evening and did not have time to return immediately to the park to search for the cap, he let Armstrong drive Miss Bray, Armstrong's date, back to the park, instead of doing so himself. The accident occurred while Armstrong and Miss Bray were en route back from the park.

In arguing that Kent did not have permission to lend the Oldsmobile to Armstrong on the day of the accident, the insurer relies upon certain testimony of Kent and his parents on direct examination. This was to the effect that the parents had given Kent general and consistent instructions over several years never to let anyone else drive a family car when Kent was allowed to take it from home. On the occasion that Kent had borrowed the Oldsmobile to use it at school in May 1963, some few days before the accident, Mr. Bennett had not had occasion to caution Kent against lending the car, while Mrs. Bennett did not remember whether she had mentioned the subject. Tr. 527.

However, certain admissions on cross-examination, as well as certain inconsistent prior statements, indicate that the prohibition against Kent lending the car to his friends was more of a cautionary policy, and that included within the father's permission to him to use the car was his parent's consent to let his friends drive the car in circumstances such as the present when his best judgment so indicated.

The father's testimony, particularly, clarifies to this effect the extent of the parents' caution to their son not to let others use the family cars when entrusted to his possession. In sworn interrogation soon after the accident, admitted in evidence at the trial, the...