AETNA CASUALTY & SURETY COMPANY, Plаintiff and Appellee, v. Homer ALLEN, Defendant and Appellant.
No. 319
Court of Appeal of Louisiana, Third Circuit
July 12, 1961
132 So.2d 240
HOOD, Judge.
Gold, Hall & Skye, by Jimmy M. Stoker, Alexandria, fоr plaintiffs-appellees.
Before TATE, HOOD and CULPEPPER, JJ.
HOOD, Judge.
This is a damage suit in which plaintiffs seek to recover the cost of replacing a plate glass window in a commercial building owned by the estate of R. S. Thornton, deceased, and located in the City of Alexandria. Plaintiffs allege that the window
The trial court rendered judgment in favor of Aetna Casualty & Surety Company and against Homer Allen for the sum of $130.09, being the full amount claimed, but the demands of plaintiffs against the remaining defendant, John C. Whiddon, were rejected. Homer Allen has appealed from that judgment.
The evidence establishes that this accident occurred on November 17, 1959. Some time prior to that date the building, of which the damaged plate glass window formed a part, had been leased by the owner, R. S. Thornton, to Andress-Abbott, Inc., and thereafter it had been sub-leased to Morock-Ford, Inc. The original lease between the owner and Andress-Abbott Inc., provided “that lessor shall maintain the said building in good repаir and shall defray all expense of installation of sewerage, gas, and water connections and shall keep said building insured at its proper insurablе value in the judgment of the lessor, including plate glass.” (Emphasis added.)
Pursuant to the terms of this lease contract, the executor of the Succession of R. S. Thornton obtаined insurance on the building, including comprehensive glass insurance, from Aetna Casualty & Surety Company. After the damage to the plate glass window ocсurred, the insurer paid the sum of $130.09 to the Succession of R. S. Thornton and obtained a conventional subrogation agreement from J. A. White, Jr., executor of that succession. The executor of this estate then joined Aetna Casualty & Surety Company, the insurer-subrogee, in instituting this suit.
The record reveals that the platе glass window was broken when struck by an automobile which was owned by John C. Whiddon and was being driven by Homer Allen. Allen and Whiddon at that time were both employees of Mоrock-Ford, Inc., Allen being employed as a car salesman and Whiddon being employed as a mechanic.
Although plaintiffs alleged in their original petition that the proximate cause of the accident was the concurrent negligence of defendants Allen and Whiddon, they contend in this court that thе sole proximate cause of the accident was the negligence of Allen in failing to maintain proper control of the vehicle he was driving. Defendant Allen denies any negligence on his part, but on the contrary he contends that the sole proximate cause of the accident was the negligence of Whiddon in failing to maintain the brakes of his automobile in proper working order, and in allowing Allen to drive the car without warning him of the defеctive condition of such brakes. Whiddon denies that he was negligent, contending that his brakes were in good condition and that he did not at any time authorize Allen to drive his car.
The trial judge did not assign written reasons for his judgment, but it is apparent from the decree which was rendered that he concluded that Whiddon was free from negligence and that the sole proximate cause of the accident was the negligence of Allen in failing to maintain proper сontrol of the automobile which he was driving.
The evidence convinces us that the brakes on the Whiddon car were not defective at the time the accident occurred, and that the sole cause of the accident was
Counsel for defendant Allen contends, however, that in spitе of Allen‘s negligence, plaintiff insurance company does not have a right of action against him. He argues that under
We think this argument is without merit. The owner of a building has the right to recover against a tortfeasor for damages done to the building. The fact that the sublessee, Morock-Ford, Inc., is responsible under
Assuming that Allen‘s emplоyer, Morock-Ford, Inc., was actually the “insured” under the policy issued by Aetna, as contended by counsel for Allen, we think that circumstances would not prеvent Morock-Ford, or its subrogee, from maintaining an action for damages against Allen. The principal or master may recover from the agent оr servant the amount of the damages which the principal has suffered by the wrongful acts of the agent.
The jurisprudence of this State has been establishеd to the effect that an insurer who is forced to pay under its contract of insurance as the result of the negligence of a third party has a right of аction under Article 2315 of the Civil Code for such a loss, without the execution of a conventional subrogation. Appalachian Corporation v. Brooklyn Cooperage Company, 151 La. 41, 91 So. 539; Foster and Glassell Company v. Knight Brothers, 152 La. 596, 93 So. 913; London Guarantee & Accident Insurance Company v. Vicksburg, S. & P. R. Company, 153 La. 287, 95 So. 771; John M. Walton, Inc. v. McManus, La.App., 1 Cir., 67 So.2d 130; Lumbermen‘s Mutual Insurance Co. v. Ruiz, La. App., 1 Cir., 77 So.2d 84; McCoy v. State Farm Mutual Insurancе Co., La.App., 3 Cir., 129 So.2d 66.
If Morock-Ford should be considered as the “insured” under Aetna‘s policy, therefore, then Aetna by virtue of the payment which it was compelled to make under that policy would be legally subrogated to the rights of that insured against Allen or anyone else for the amount which it was required tо pay. Aetna, therefore, as the subrogee of either the owner of the building or of the sub-lessee, Morock-Ford, Inc., is entitled to recover from Allen.
Affirmed.