Tuck v. Harmon

• Decision Date: 03 January 1934
• Docket Number: 4549
• Citation: 151 So. 803
• Court: Court of Appeal of Louisiana — District of US
• Parties: TUCK v. HARMON ET AL

151 So. 803

TUCK v. HARMON ET AL

No. 4549

Court of Appeal of Louisiana, Second Circuit.

January 3, 1934

Thompson & Thompson, of Monroe, for appellants.

Lester & Harper, of Monroe, for appellee.

OPINION

MILLS Judge.

On May 1, 1932, in the city of Monroe, La., an automobile owned by Robert G. Harmon, in which his wife was driving alone collided with the car owned and driven by H. D. Tuck, under such circumstances that the issue of negligence on the part of Mrs. Harmon is not contested. This action is brought by Mrs. Ida Belle Tuck, wife of H. D. Tuck, who was riding on the front seat beside her husband at the time of the accident. The force of the collision threw her forward so that her knees struck the instrument board with such violence as to cause a sacroiliac sprain. The only questions presented then are the liability of the different defendants-the suit being brought against Mr. and Mrs. Harmon and their insurer the Commercial Standard Insurance Company, of Dallas, Tex.-and the quantum of damages.

In the lower court there was judgment in favor of plaintiff against the three defendants, in solido, for $ 5,000, the amount covered by the insurance policy, and for an additional amount of $ 1,500 against Robert G. Harmon and wife, in solido-an allowance in all of $ 6,500. From this judgment all of the defendants have appealed and plaintiff has answered the appeal praying that the judgment be increased to $ 15,500, the amount prayed for.

Before answering to the merits, all defendants filed an exception of no cause or right of action. As to Robert G. Harmon, the allegations of the petition are: "That said automobile was maintained and used by said Robert G. Harmon for the pleasure and convenience of himself and family; that Mrs. Harmon was authorized by her husband, Robert G. Harmon, to use said car as and when she desired." The mere granting of authority to use a car as and when desired does not constitute the grantee the agent of the grantor. Were it otherwise, the owner would be liable for the acts of any one to whom he had loaned his car.

What is known as the "family purpose" doctrine has no application in this state. Globe Indemnity Co. v. Quesenberry et ux., 1 La.App. 364; Davis v. Shaw (La.App.) 142 So. 301.

Article 9 of the petition alleges further: "That on the evening of the accident, Mrs. Harmon was on a trip or mission for her husband, and was, therefore, acting in the capacity of agent for her said husband, Robert G. Harmon." There being no allegations of fact in the petition to support these conclusions, no cause of action is stated. State v. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772. The exception as to Robert G. Harmon should have been sustained. It was correctly overruled as to Mrs. Harmon.

Nor could Harmon be held on the merits. At the time of the accident he was away from home. Friends of his driving to Monroe met with trouble and phoned the Harmon home to ask that he drive out and bring them in. Mrs. Harmon received the message and, without communicating with her husband, responded to the call. The collision occurred while she was returning home in the family car after completing this mission. There is no question as to the liability of Mrs. Harmon, under article 2315 of the Civil Code, for the damage caused by her fault. However, there is no provision in the Code making the husband, because of the marital relationship, liable for the torts of his wife. To render him so liable, where he is not present, it must be shown that the wife was acting as his agent, or was using the car for the purposes of the community. Durel v. Flach, 1 La.App. 758; McClure v. McMartin, 104 La. 496, 29 So. 227. There is no evidence to show that Harmon had given his wife any general instructions or authority to go out and bring in his distressed friends. He could not have done so in regard to the particular trip, of which he had no knowledge. He has never in any way ratified the action of his wife or made it his own. The trip was not in any way a community affair. The wife, who did not take the stand, may have correctly assumed that, if her husband had been present, he would have himself gone, but this, so far as the evidence shows, was merely an assumption and could not constitute agency. If the wife was the agent of any one, it was of the friends to whose call she responded gratuitously, in the same way that a public garage would have done for hire. She acted on her own initiative.

As to the defendant insurer, the allegations of article 8 of the petition are: "That said Hudson sedan automobile was covered by a policy of public liability insurance, issued by the Commercial Standard Insurance Company, of Dallas, Texas insuring Mr. Robert G. Harmon or any adult member of his household, against loss on account of injury to any person caused by the operation of said automobile." The exception as to the insurer is aimed at the failure of the petition to contain any allegation that under its terms the policy was for the protection of or inured to the benefit of injured third parties. In Lacy v. Lucky, 19 La.App. 743, 140 So. 857, the court held that, without such allegation, no cause of action is stated against the insurance company sued jointly with its insured by a third person who has suffered injury by the operation of the car covered by the policy. Act No. 55 of 1930, §2, amending Act No. 253 of 1918, §1, reads in part, " (3)5C Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido." In Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., 18 La.App. 725, 138 So. 183, 188, we find the following: "We feel that the purpose of both statutes was to guarantee to an injured party his right to recover from the insurer of a person liable to him." Again: " (3)5C Both, as we have said, have for their object the protection of the right of an injured party to recover from the insurer of the party at fault." If the policy contained a stipulation that it was for the protection of third persons and inured to their benefit when injured by the assured, there would be no occasion for the act. The right to sue the insurer direct would then result from the contract itself, and not by the operation of law. While the policy in this case is not attached to the petition nor filed in evidence, owing to the failure of plaintiff to procure its production on a subpeona duces tecum directed to Robert G. Harmon, it...