Plummer v. Motors Ins. Corp.
| Decision Date | 10 June 1957 |
| Docket Number | No. 43186,43186 |
| Parties | Charley PLUMMER v. MOTORS INSURANCE CORPORATION. |
| Court | Louisiana Supreme Court |
Edwin C. Schilling, Jr., Amite, Tucker & Schonekas, New Orleans, for defendants-appellants.
Richard Kilbourne, Clinton, for plaintiff-appellee.
Plaintiff Charley Plummer instituted this suit to recover $4,154.50, the alleged value of a GMC truck. Named as defendant is Motors Insurance Corporation. This defendant in its answer invoked the provisions of the Third-Party Practice Act, R.S. 13:3381 et seq., and made General Motors Acceptance Corporation a third-party defendant. Defendant prayed that any judgment rendered in plaintiff's suit be against the third-party defendant, but that in the event there was judgment against it, the insurance company, it have judgment for the same amount against the third-party defendant, General Motors Acceptance Corporation.
Pleas of prescription and exceptions filed both by the defendant and by the third-party defendant was overruled or referred to the merits, and after trial on the merits there was judgment in favor of plaintiff and against defendant Motors Insurance Corporation for $2,500, and judgment in favor of Motors Insurance Corporation and against third-party defendant General Motors Acceptance Corporation for the same amount. Both defendant and third-party defendant appealed suspensively.
In September, 1953, plaintiff bought a 1953 GMC truck from Johnson-Cefalu Buick Company of Amite for $4,154.80. The credit portion of the purchase price was evidenced by a promissory note for $2,854.80 payable in monthly installments and secured by a chattel mortgage on the truck. The vehicle was insured by the defendant Motors Insurance Corporation against fire, theft, etc.
On June 29, 1954, the truck was damaged by fire. The next day, at plaintiff's request Butler Motor Company in Clinton notified the insurance company that the truck had been damaged by fire and asked that it send for the truck and repair it. The following day, pursuant to plaintiff's request, a representative of the insurance company came to Clinton and removed the truck from Butler Motor Company, where it had been stored, to Lewis Chevrolet Company in Kentwood to be repaired. While the truck was stored by the insurance company in Kentwood with Lewis Chevrolet Company, a representative of the insurance company requested that plaintiff sign a document styled 'Loss or Damage Agreement'. This representative explained to the plaintiff that the insurance company required the execution of this document so that the necessary repairs could be made to the truck. The plaintiff refused to execute this agreement because of a clause releasing and discharging the insurance company from any and all liability under the policy. Due to the language of the document and a clause which the representative testified he proposed to insert in it, we think the plaintiff was justified in refusing to sign the document.
After the fire plaintiff failed to pay the July, August, and September installments on his note for the balance of the purchase price. The finance company, third-party defendant, which was the holder of the note, without the authority and the knowledge of the plaintiff and without instituting legal proceedings took possession of the truck and caused it to be moved from Lewis Chevrolet Company in Kentwood, where it had been stored by the insurance company, to Johnson-Cefalu Buick Company in Amite, and obtained from the Buick company a receipt for the truck dated September 7, 1954.
According to the testimony of a representative of the finance company, the truck was delivered to the original seller, Johnson-Cefalu Buick Company, under a repurchase plan, by which a motor vehicle repossessed by the finance company is returned to the selling dealer, who repurchases the contract and pays the finance company the balance due under the contract. According to this representative, the Buick company, the original seller of the truck, paid to the finance company the balance due under plaintiff's contract. Consequently at that time plaintiff's obligation on the purchase contract was satisfied as far as the finance company was concerned.
Johnson-Cefalu Buick Company in due course filed formal proof of loss with the insurance company under the loss payable clause of the policy. The insurance company authorized the repair of the truck, Johnson-Cefalu repaired the truck, and the insurance company according to its answer paid to that company $773.53 for these repairs. The Buick company thereafter sold the truck to some person whose identity is not shown by the record.
The present suit was instituted by Plummer against Motors Insurance Corporation on October 7, 1955, and this defendant made General Motors Acceptance Corporation a third-party defendant on February 3, 1956.
As shown in argument and in brief in this court, all counsel seem to be in doubt as to the nature of plaintiff's cause of action, and, in fact, plaintiff's counsel stated in argument that he himself was not entirely sure of the nature of the action. However, we think a fair and liberal construction of the petition is that the suit is one for a breach by the insurance company of its obligation to return plaintiff's truck to him.
Under the petition and the established facts, it is clearly shown, and is even admitted by the defendant insurance company, that the insurer obtained possession of the truck at plaintiff's request for the purpose of having it repaired. Under these circumstances its possession was a legal possession. Plaintiff seeks to recover the value of this truck on the basis that defendant insurance company has refused either to repair and return the truck or to pay him its value.
Defendant made no offer or effort to return the property, evidently because it was not in a position to do so. As admitted in its answer and shown by the facts, it no longer had the control and custody of the vehicle which had been entrusted to it for the purpose of making repairs, for the truck had been 'repossessed' by General Motors Acceptance Corporation, the finance company, whose representative had taken control of it.
When defendant Motors Insurance Corporation took possession of Plummer's damaged truck for the purpose of repairing the fire damage to the vehicle, the company became a depositary under Article 2926 of our Civil Code. Under Article 2937 as depositary it was bound to use the same diligence in preserving the vehicle, the deposit, that it uses in preserving its own property, and under Article 2944 as depositary it was bound to return the vehicle to plaintiff. This is the obligation which the insurance company breached.
The only defense offered for the breach of this obligation is that the motor vehicle was, as expressed by defendant, 'repossessed' by the finance company; but, as we have pointed out in our statement of the facts, this finance company took possession of the truck without the knowledge and consent of the plaintiff and without instituting legal proceedings. This action by the finance company was illegal and improper. Neither the defendant nor the third-party defendant disclosed any of the facts and circumstances surrounding the taking of the truck by the finance company, except merely to state that it was 'repossessed'. Thus we are unable to state whether the finance company took the truck with the knowledge and consent of the main defendant and under some agreement between them, or whether it took the truck without the main defendant's knowledge or consent. These facts are certainly within the knowledge of the insurance company and the finance company, but neither made any effort to disclose them.
The defense offered by the insurance company is no defense either in law or in fact, for it cannot justify its actions in this case by simply stating that the vehicle was 'repossessed' by the finance company. Consequently the main defendant is liable to plaintiff for the breach of its obligation to return the vehicle. See James v. Greenwood, 20 La.Ann. 297; Paterno v. Kennedy The Cleaner, Inc., 18 La.App. 649, 138 So. 531; Royal Ins. Co., Limited, of Liverpool, England v. Collard Motors, La.App., 179 So. 108; Koerner v. Firestone Tire & Rubber Co., La.App., 17 So.2d 839.
On the theory that plaintiff's suit is one in tort, defendant insurance company filed a plea of one-year prescription under Article 3536 of the Civil Code, which provides that the action resulting from offenses and quasi-offenses is prescribed in one year. The provisions of this article have no application here since, as we have pointed out above, plaintiff's action is not one in tort.
On another theory, that plaintiff's suit is one on the contract of insurance, the insurance company filed exceptions of no right and no cause of action. These exceptions were levelled at the proposition that plaintiff had not complied with certain provisions of the insurance policy which state in substance that no action shall lie under the policy unless as a condition precedent the insured shall have filed proof of loss with the company. Plaintiff is not suing here under any provision of the insurance policy. Certainly it cannot be said that he is suing for the damage to the truck caused by fire or for what it would cost to repair the vehicle. Consequently, since the action is not on the policy, there was no requirement for him to file proof of loss before instituting this suit.
Third-party defendant, General Motors Acceptance Corporation, contends that its exception of no cause of action should have been sustained because Motors Insurance does not have a cause of action against it under the provisions of the Third-Party Practice Act, R.S. 13:3381 et seq. R.S. 13:3381 provides in part:
'In any civil action presently pending or hereafter filed the defendant in a principal action may be petition...
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...this former, unsatisfactory and unworkable substantive principle. These cases were soon followed by Plummer v. Motors Insurance Corp., 1957, 233 La. 340, 96 So.2d 605. There in a case not involving warranty, express or implied, as between defendant and the third party defendant, the Louisia......
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