Tolbird v. Southern Ins. Co.

• Decision Date: 05 May 1961
• Docket Number: No. 9447,9447
• Citation: 130 So.2d 535
• Parties: James L. TOLBIRD, Plaintiff-Appellee, v. SOUTHERN INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 535

130 So.2d 535

James L. TOLBIRD, Plaintiff-Appellee, v. SOUTHERN INSURANCE COMPANY, Defendant-Appellant.

No. 9447.

Court of Appeal of Louisiana, Second Circuit.

May 5, 1961.

Rehearing Denied June 1, 1961.

Certiorari Denied June 22, 1961.

Bodenheimer, Looney & Richie, Shreveport, for appellant.

G. F. Thomas, Jr., Natchitoches, for appellee.

Before HARDY, GLADNEY and AYRES, JJ.

HARDY, Judge.

This is an action by plaintiff on a policy of insurance seeking recovery for the loss by fire of an automobile trailer and its contents, together with statutory penalties and attorney's fees. From a judgment in favor of plaintiff in the principal sum of $2,800, the defendant insurer prosecutes this appeal. Plaintiff has answered the appeal, seeking the amendment of the judgment to the extent of the allowance of penalties and attorney's fees.

Under a policy issued May 19, 1959, and effective for a period of twelve months beginning May 20, 1959, the defendant, Southern Insurance Company, insured an Alma Trailer House owned by plaintiff against certain risks designated in the policy, including loss by fire, to the extent of a value of $4,000 on said trailer and $2,000 on the personal effects contained therein. The policy was sold to plaintiff and issued by the Tri-State General Agency, Inc. of Bossier City, Louisiana, through an authorized representative of said agency. On June 8, 1959 the insured house trailer, while parked by the side of a highway in Red River Parish, was completely destroyed by fire, together with all personal effects, furniture and fixtures contained therein, the origin of which fire was allegedly unknown to plaintiff. The record contains several communications with relation to plaintiff's claim for payment of the fire loss, which may be chronologically set forth as follows:

1. Letter dated June 16, 1959, to the Teekle-Mulkey Insurance Agency in Bossier City from a representative of the People Bank of Natchitoches, requesting the name of the company in which the policy was written, together with the name and address of the adjuster handling the loss, and further stating that a member of the insurance agency addressed had advised the writer that the loss had been reported, an adjuster notified and an investigation initiated.

2. Letter of June 18, 1959, from a representative of the Peoples Bank, directed to the Southern Insurance Company advising the existence of a balance due on a chattel mortgage on the insured trailer and formally notifying the addressee of the claim of the said bank.

3. Letter from a representative of the People Bank directed to the J. Ed Morneau Claims Service in Shreveport, giving the same information above noted.

4. Letter of September 10, 1959, directed to the Morneau Claims Service, attention Mr. E. Kernaghan (the investigating adjuster), from plaintiff's counsel, who also represented the Peoples Bank, requesting information as to why the claim had not been paid and making a demand for payment within ten days, failing which notification was given that suit would be filed to recover the amount of the loss, together with penalties.

5. Letter from plaintiff's counsel, dated September 23, 1959, to the same addressee, asking reference to his letter of September 12th, to which no reply had been received, and requesting advice as to the reason for denial of liability and refusal of payment.

6. Letter of September 30, 1959, addressed to counsel for defendant, requesting information as to the reason for denial of liability.

On trial of the case counsel for plaintiff objected to certain questions directed to plaintiff during cross examination by counsel for defendant, which examinations were apparently designed to support a defense of arson. This objection was based upon the contention that such a defense was affirmative in nature and required to be specially pleaded. The objection was overruled.

It is the contention of counsel for defendant that the mere denial, in its answer, of plaintiff's allegation that the cause of the fire was unknown was sufficient to permit the testimony sought to be introduced. We cannot approve this contention since it is wel established that an affirmative defense must be specially pleaded. Kizer v. Garnier, 230 La. 552, 89 So.2d 119; Succession of Giordano, 194 La. 648, 194 So. 577, 578. With reference to the last cited case we particularly note the language of the court as follows:

'The purpose of the pleading act is to advise parties litigant of the issues in order that they might have an opportunity to present evidence supporting their contentions. It also prevents a party litigant from springing surprises and catching an opponent at a disadvantage. The defense interposed herein is an affirmative one.'

(Cf. comment on cited case, 3 LLR., 361).

With special reference to insurance claims we cite Pino v. Merchants' Mutual Ins. Co., 19 La.Ann. 214, in which the court made the following statement:

'Several decisions of this court have recognized the rule . . . that all matters which show the transaction to be void or voidable in point of law on the ground of fraud, or otherwise, shall be pleaded specially. (cases cited).

'The prevailing rule seems to be, in regard to policies of insurance, that misrepresentations, concealment, etc., must be specially pleaded.'

In Sigrest v. Federal Ins. Co., 14 La.App. 55, 129 So. 379, our brethren of the First Circuit rejected testimony of arson as a defense on the ground that the defendant had made no plea upon which such a contention could be based. An even stronger statement has been made on the same issue in the opinion of the same court in the somewhat recent case of Barbari v. Firemen's Ins. Co., 107 So.2d 480, 482 (writs denied) as follows:

'There is no question that an effort in avoidance or extinguishment of an obligation is a special defense and must be specially pleaded with sufficient facts alleged upon which to introduce proof of the extinguishment or avoidance.'

Though not in effect as of the date of this action, it should be pointed out that if any doubt has heretofore existed with reference to the necessity for pleading an affirmative defense, it has been removed by the provisions of Article 1005 of the LSA-Code of Civil Procedure which requires that an answer shall set forth any matter constituting an affirmative defense.

It is obvious from an examination of the pleadings in the instant case that the defendant did not set up an affirmative defense of the incendiary origin of the fire which was caused or contributed to by the insured, and,...