Union Indemnity Co. v. Crow

127 So. 35, 14 La. App. 197, 1930 La. App. LEXIS 384

• Court: Louisiana Court of Appeal
• Decided: March 24, 1930
• Docket: No. 3642
• Status: Published

Opinions

WEBB, J.

This action arises out of a collision between a motortruck owned by the Schuster Wholesale Produce Company which was, at the time of the accident, being operated by one of its employees, and an automobile owned by defendant, J. B.. Crow, which was being driven by his minor son.

The motortruck which x was damaged in the collision was insured by the plaintiff company, and this suit was brought to recover an amount alleged to have been paid by plaintiff to the Schuster Wholesale Produce Company to cover the damage insured against under the policy which provided that, in case of payment of loss under the policy, the insurer shall be subrogated to all of the rights of the assured against any person, etc., as respects such loss.

The defendant excepted that the petition failed to state a cause of action, in that plaintiff failed to allege that the Schuster Wholesale Produce Company had subrogated plaintiff to its rights at the time of the alleged payment, and, the exception being overruled, defendant, under reservation of his rights in the exception, answered, denying plaintiff’s allegations.

On trial, judgment was rendered against the defendant for the amount claimed. Defendant appeals, and urges that the exception of no cause of action should have been sustained, and, further, that the evidence did not show plaintiff had paid the Schuster Wholesale Produce Company anything under the policy for the damage alleged to have been sustained, and, further, that the evidence established that the driver of the truck was negligent and that his negligence was the proximate or a contributing cause of the collision.

We are of the opinion that the exception of no cause of action was properly overruled, as plaintiff alleged that it had paid the Schuster Wholesale Produce Company the amount claimed, to cover the damage insured against under the policy, and, if so, it became subrogated under the terms of the policy to the rights of the Schuster Wholesale Produce Company against the defendant. Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766; Maryland Casualty Co. v. Muller, 9 La. App. 700, 119 So. 764.

The evidence as to the question of negligence was, as usual, conflicting, but we do not deem it necessary to review the evidence, as to that question, as plaintiff failed to offer any evidence whatsoever to prove its allegation that it had paid the Schuster Wholesale Produce Company, and, defendant having denied any payment had been made, plaintiff’s demands should .have been rejected.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed and avoided, and that plaintiff’s demands be rejected at its cost.