Fullilove v. US Casualty Company of New York

125 So. 2d 389, 240 La. 859, 1960 La. LEXIS 1082
CourtSupreme Court of Louisiana
DecidedDecember 12, 1960
Docket45280
StatusPublished
Cited by21 cases

This text of 125 So. 2d 389 (Fullilove v. US Casualty Company of New York) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fullilove v. US Casualty Company of New York, 125 So. 2d 389, 240 La. 859, 1960 La. LEXIS 1082 (La. 1960).

Opinions

TURNER, Justice.

Plaintiffs, in these consolidated cases, sought to recover damages resulting from an accident which occurred on June 13, 1958, about 10:00 p. m. on U. S. Highway No. 80, approximately one mile east of Choudrant, Lincoln Parish, between a Plymouth car, driven by Buford Caldwell and a Chevrolet car driven by Henderson Jordan who was alone. In the collision, Buford Caldwell, Ronny Webb Fullilove and Henderson Jordan were killed and other occupants of the Plymouth were seriously injured.

The defendants were State of Louisiana through the Department of Public Works, the alleged employer of Henderson Jordan, United States Casualty Co., the automobile liability insurer of the Chevrolet automobile being driven by Henderson Jordan but owned by his son Larry, and Southwestern Fire & Casualty Co., the public liability insurer of a Ford automobile, the family car [864]*864of Henderson Jordan and his wife, Mrs. Annie Lesba Jordan. The Ford was registered and insured in the name of Mrs. Jordan. Prior to the trial, U. S. Casualty Co. made settlement with the plaintiffs. The State of Louisiana was dismissed from the action after trial as a result of the decision of this Court in Duree v. Maryland Casualty Co., 238 La. 166, 114 So.2d 594. Judgment was rendered in favor of the plaintiffs in the Caldwell suit for $2,500 and in the Fullilove suit for $7,500 against Southwestern Fire & Casualty Co., the liability limits of its policy on the Ford.

Defendant, Southwestern Fire & Casualty Co., appealed to the Court of Appeal, Second Circuit, which affirmed the judgment of the district court. Following the finality of this judgment, Southwestern Fire & Casualty Co. applied here for certiorari. The writs were granted and the case has been argued and submitted for our decision.

All parties to these two suits accept the trial court’s findings as to negligence and quantum, the only question to be determined by this court is Southwestern’s liability under its policy on the Ford automobile.

The policy, in its insuring clause, recites that the company agrees to pay on behalf of the insured, ■ all sums up to the limits of liability, which the insured shall become legally obligated to pay as damages because of injury or death to others. The policy further provides :

“Persons Insured
“The following are Insureds^ under Part 1:
“(a) With respect to the owned automobile,
“(1) The named Insured and any resident of the same household,
“(2) Any other person using such automobile, provided the actual use thereof is with the permission of the named insured;
“(b) With respect to a non-owned automobile,
“(1) the named Insured,
“(2) any relative, but only with respect to a private passenger automobile or trailer not .regularly furnished for the use of such relative.”

It also provides under Definitions, that: “Under Part 1:

“ ‘named insured’ means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household;
“ ‘insured’ means a person or organization described under ‘Persons Insured’ ;
[866]*866“ ‘relative’ means a relative of the named insured who is a resident of the same household;
“ ‘owned automobile’ means a private passenger or utility automobile or trailer owned by the named insured, and includes a temporary substitute automobile;
“ ‘temporary substitute automobile’ means any automobile or trailer while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
“ ‘non-owned automobile’ means an automobile or trailer not owned by the named insured or any relative, other than a temporary substitute automobile’ ”

The trial court and the court of appeal found that Larry’s Chevrolet was at the time of the accident being used by his father, Henderson Jordan, as a “temporary substitute automobile,” as defined in the policy.

The record shows that the Ford described in the policy was the family car, having been purchased with community funds. Henderson Jordan regularly used the Ford, among other uses, for the purpose of making trips in connection with his employment by the Department of Public Works of the State of Louisiana. When her husband was not using the Ford, Mrs. Jordan ordinarily used it for the purpose of going to work in the morning, returning home for lunch, back to work after lunch and home again in the evening. Mr. and Mrs. Jordan’s son, Larry, who resided in the household with his parents, owned a Chevrolet automobile which was available to his father on any occasion that he wished to use it without his having to obtain specific permission. It was shown that prior to the day of the accident Mr. Jordan used Larry’s car only for short trips in connection with his employment. When Mr. Jordan was using the Ford, Mrs. Jordan and Larry rode to and from work in the Chevrolet. When Mr. Jordan was using the Chevrolet, Mrs. Jordan and Larry used the Ford for that purpose. On the day of the accident, Mrs. Jordan drove to and from work in the Ford.

Also on that day, Mr. Jordan left on a long trip on business for his employer using Larry’s Chevrolet. Mr. Jordan did not give any reason for using his son’s car on that occasion but it is presumed that he did so because the tires on the Ford were in such poor condition as to make it unsafe to drive a long distance in the Ford as evidence was introduced to show that it would not have been prudent to drive any distance with the tires that were on the Ford at that time. Plaintiffs therefore contend that the Ford had been withdrawn from Henderson Jordan’s normal use for long-distance driving [868]*868because of its breakdown and that the Chevrolet of Larry Jordan became a “temporary substitute automobile,” and as such included in the liability coverage of the insurance policy on the Ford.

On the other hand, Southwestern contends that inasmuch as Mrs. Jordan was actually using the insured Ford on the day of the accident in a normal and customary manner, it cannot be said that the car was withdrawn from normal use because of its breakdown.

The terms and definitions of the policy extend coverage to a temporary substitute automobile when the owned automobile is withdrawn from normal use because of any one or more of five causes, viz.: Breakdown, repair, servicing, loss or destruction. The cause claimed here is “breakdown”. We think that tires being necessary to the operation of the automobile, “breakdown” occurs when the condition of the tires are such that the automobile is immobilized or unfit for normal use.

Posed for our determination is the question of whether the Ford was withdrawn from normal use because of its breakdown.

The policy before us for interpretation is a fairly new type which provisions have not been litigated before an appellate court in Louisiana prior to this case although its provisions have been considered in other jurisdictions and decided adversely to plaintiffs’ position.1

Finding that Mr.

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Bluebook (online)
125 So. 2d 389, 240 La. 859, 1960 La. LEXIS 1082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fullilove-v-us-casualty-company-of-new-york-la-1960.