Tucker v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 21 May 1963 |
| Docket Number | No. 9949,9949 |
| Parties | Herman B. TUCKER, Individually and as Natural Tutor, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Frederick F. Preaus, Bastrop, Rabun & Dawkins, Farmerville, for appellant.
Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellee.
Before HARDY, GLADNEY and AYRES, JJ.
This is an action by plaintiff, individually and as Natural Tutor of the minor children and heirs of Lula Mae Tucker, deceased, claiming damages under a policy of automobile liability insurance issued by defendant in favor of said decedent. From judgment sustaining defendant's exception of no cause of action, plaintiff has appealed.
The facts alleged in plaintiff's original and supplemental petitions material to a determination of the issue presented are that during the afternoon of August 20, 1961, the decedent, Lula Mae Tucker, returned to her home in her automobile, and parked the same on an inclined driveway. Approximately an hour later decedent observed that the automobile, occupied by one of her minor children--some seven years, seven months of age at the time--had begun to roll down the incline. In the attempt to stop the automobile, decedent was struck and fatally injured. Plaintiff further alleged that the proximate cause of the movement of the automobile was due to the action of the minor child in disengaging the gears or releasing the emergency brake. In a supplemental petition plaintiff alleged, in the alternative, that the accident was caused by the negligence of the decedent in leaving the automobile parked on an inclined driveway without engaging the gear shift or the parking brake to prevent any motion of the vehicle.
Defendant's exceptions of no cause of action, filed responsively to each of plaintiff's petitions, are predicated upon (1) lack of coverage of the policy; (2) the incapacity of the minor child to be adjudged guilty of actionable negligence, and (3) the lack of a right or cause of action by decedent survivors under the alternative allegation that her death was caused by her own negligence.
The principal, and we think the determinative, issue presented on this appeal requires a resolution of the meaning of the coverage clause contained in the defendant's insurance policy '* * * arising out of the onwership, maintenance or use of the owned automobile * * *.'
The interpretation of the above quoted provision, in the instant case, must be limited to the meaning of the word 'use', since there is no contention that the accident occurred as the result of ownership or maintenance of the vehicle.
Counsel for plaintiff argues that the word 'use' should be accorded a liberal interpretation on the basis that it is designed, intended and should be construed to include all proper uses of the vehicle and that a person can use an automobile without actually operating the same; citing Bolton v. North River Insurance Company (1st Circuit, 1958), La.App., 102 So.2d 544. We are of the opinion that the cited case is not authority for the interpretation urged by counsel. The use of the automobile in the Bolton case was limited to a determination as to whether a passenger seated in the automobile was actually using the insured vehicle under the liberal interpretation of the policy provisions.
While we accord with the conclusion of our brethren of the First Circuit, we think the contended interpretation, if applied in the instant case, would represent an unwarranted liberality of construction to the prejudice of the insurer.
We have been unable to find any direct authority which would assist in the interpretation of the word 'use' under plaintiff's factual allegations. In its opinion in the Bolton case, the court quoted from Appleman's Insurance Law and Practice, Volume 7, Section 4316(e):
'The term 'use' is the general catchall of the insuring clause, designed and construed to include all proper uses of the vehicle not falling within one of the previous terms of definition * * *.'
The following section, 4317, of the same work is more...
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Erie Ins. Exchange v. Transamerica Ins. Co.
...incident or the consequence of the use of the vehicle for the purposes shown by the declaration, though not foreseen or expected. Tucker, supra, at 228. The remaining case uses a similar test--the intentions of the parties to the contract. " ... it is unreasonable to conclude that the parti......
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National American Ins. Co. v. Coburn
... ... DISCUSSION ... Relying on State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, ... Auto. Ins. Co. (La.App.1977) 347 So.2d 1275 and Tucker ... ...
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Engeldinger v. State Auto. and Cas. Underwriters
... ... Plaintiff initially relies on language of State Farm Mutual Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d ... See, Tucker v. State Farm Mutual Auto. Ins. Co., 154 So.2d 226 (La.App.1963), in ... ...
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25,876 La.App. 2 Cir. 6/24/94, Mahlum v. Baker
...common sense dictates finding that the accident did not arise out of the "use" of a motor vehicle, see Tucker v. State Farm Mutual Automobile Ins. Co., 154 So.2d 226 (La.App.2d Cir.1963).4 In Picou v. Ferrara, 412 So.2d 1297 (La.1982), the plaintiff's motorcycle was struck by an automobile ......