Haeuser v. &198tna Casualty Surety Co.Haeuser v. &198tna Casualty Surety Co.
*1 (cid:127);684 ap were was said in case is What that the note] Gaillardanne [holder prove plicable here. Zimmer has failed to by supplied Locascio funds made with interrupted. prescription that has been no show- note], and there [maker years elapsed having before More than five authority in Charbonnet any express ing of filed, plea pre this suit defendant’s Loscascio. regard to act * * *_ scription good. ' appeal lodged in this Since Company v. Guaranty Trust Bank & “In court, (Sep- died the defendant Caumont 161, 164, Heiderich, 13, 1938) Felicie Dufour tember and Mrs. held, opinion, it was Caumont, community, and his widow in au pay authority note included a Caumont, Dorothy F. Mrs. wife of Charles interest, and thority payments of Downs, heir, decedent’s sole payment of ac that, consequently, the proper motion, parties. been made effect the note had the crued interest on The view which we concern- entertain acknowledgment the debt or of -an prescription years ing the of five makes it prescription. interrupt promise new so as to unnecessary for us to consider however, rehearing, court reversed On points by raised defendant. authority given a itself and held that maturity merely pay person before third assigned judgment reasons authority pay maturity ‘is note at annulled, from is avoided and thereon, partial accrued interest the ly pay is now ordered that versed maturity.’ note after dismissing plaintiff’s herein defendant, Heiderich, suit. president large the vice and a stockholder Reversed. Realty Company. Boyce Lumber & Guaranty from the Heiderich borrowed $6,000, Company Bank for the & Trust corporation, ex and benefit promissory note for that amount ecuted 1, 1917, payable and secured October belonging real mortgage on certain estate corporation agreed that the to him. v. ÆTNA CASUALTY & HAEUSER maturity, pay which was note' should al.* CO. et SURETY done, but, at certain intervals the ac paid, and at one No. 17095. interest was cumulated made on payment was account n Appeal Orleans. of Louisiana. Court of on the note principal. When sued April 1939. pre pleaded the Heiderich August, years, which 'the Su April 24, scription of five Decree Corrected 1939. opinion, Court, over in its preme first payments ground that upon the ruled corporation had interest rehearing 'interrupted prescription, but plaintiff’s was maintained plea
n dismissed, saying: ‘In such a court here, interrupt presented case as began to run prescription note, appear it must maturity of the maturity, maker, authorized after payment, A without payment thereon. authority acknowledgment an is not debt, acknowledgment and such interrupt prescription. necessary to the least indication in this is not “There special authority express and record upon Charbonnet conferred been had payments of interest which are make the pf plea prescrip- defeat the upon to relied * * * ”. tion. May 29, Supreme Court certiorari denied *Writ *2 opinion we affirmed the upon application re- district court for and hearing reopened the case and limited question consideration to the of the liabil- ity carrier, Aetna insurance Surety Company. Casualty & The clause liability which the predicated insurer is is is known what as clause” and reads as follows: “omnibus un- “IV. Definition of ‘Insured.’ —The
qualified
‘insured’
wherever
insured, but
includes not
the named
using
while
person
organization
and
sponsible
thereof, provided
for
and actual use of the automo-
the declared
‘pleasure
is
and
‘com-
bile
mercial’,
herein,
pro-
and
each
further,
vided,
that the actual use is with
the named insured.
s{;
í|íJ>
the facts of this case
found
Under
Hebert,
chauffeur,
Kerner’s
departed
time
the accident had
permission granted by
em-
his
return
ployer in that he
instructed to
garage
hap-
car to the
and the accident
pened while he
conveying
Orleans,
Hopkins, of New
for
W.
home,
delayed
having
friends to their
com-
James
appellant.
pliance
employer’s
with his
orders. We
opinion,
adhere to that
the facts not
Orleans,
Assenheimer,
New
for
E.
rehearing,.-
reexamined
us on
Hanna.
appellee Chas. W.
Son,
Orleans,
Adams &
of New
St. Clair
therefore;
question,
whether un-
appellees Chas. T. Kerner and Aetna
der
omnibus clause the insurer is liable
Surety
&
Co.
Casualty
person
damages
third
caused
the automobile of the named insured while
WESTERFIELD,
Judge.
operated by
person
with the insured’s
permission,
contemplat-
an errand
on
granted
rehearing
We
in this case for
purpose
by or included within
ed
question
reconsidering
use the
which
liability
&
The'
on behalf
automobile.
Surety Company, defendant
insurer under
is,
expressed by ingenuous
insured
policy.
omnibus clause in its
A brief
rehearing,
“there
their brief
counsel in
necessary.
the facts
restatement
phrase
provisos
making
brought
Leon G. Haeuser
n CharlesT.
(1) That
the declared and
use’.
‘actual
Kerner,
owner of a Cadillac
use of the automobile is
automobile,
Surety
'Casualty
the Aetna
&
‘commercial’,
business’ or
each as de-
carrier,
and
Company,
liability
his
(2) ‘that the
actual use
fined
Flebert,
chauffeur,
Walter
and Chas.
permission of the named in-
Hanna,
damages
physical
W.
due to
provisos,
In
first of these two
sured’.
injuries sustained
his -minor son as the
is made between declar-
distinction
a clear
result of a collision between the Cadillac
contemplated by
(i.e. future use
Kerner,
plaintiff’s
ed
car
son was
agreement
in-
insured
a-passenger, and a Ford Sedan owned making
company at
by Hanna,
surance
driven
under circumstances al-
proviso,
second
the term
contract).
to involve all four defendants with
leged
employed in the
sense
same
use’
court, by
‘actual
responsibility.
judg-
The trial
before; namely, ‘use in action or exist-
Kerner,
ment,
Casualty as
the Aetna
released
time, present, nonce or current
ence
Company and Hanna and held
hereafter).
(See definitions
responsible.
In our
use’.
alone
Hebert
words,
omnibus clause covers
of the policy
liability
do not
limit
automobile,
using
third
thereunder to
arising
causes
when the
First,
subject
to two
mitted
restrictions.
driver
either for
of the automobile
‘declared
owner’s business
restrict-
or under
“pleasure
business”
“commer-
circumstances. The
is not re-
*3
herein’, and,
cial”,
stricted,
sec-
each as
possible
but used in its broadest
ond,
per-
‘that
actual use is with
sense and under the
of
rules
construction
Surely
insured’.
it
mission of the named
generally applicable
kind,
in
of
cases
the clause
could not be contended that
give
the same
used
meaning
a different
‘actual use’ has
in
broad construction. The
words used
pro-
provisos.
both
The distinction in
practically
clause would
meaningless
contemplated
visos is between
object
and the
nugatory
made
if it
contingency
currently
and use
be-
future
necessary
were
every
to determine in
case
Thus,
any particular
ing
time.
whether, at the time and under the circum-
permission
gave
Kerner
which Mr.
for
accident,
pro-
stances
of
the driver was
use,
contemplated
specific
as dis-
a
jvas
ceeding
per-
within
limitations of the
quite different actual
tinguished from the
mission of the
to use the car.
assured
making
chauffeur was
use which his
give
‘provided:
(a)
order to
clause
occurred.
the accident
when
being
permission
used with the
permission
impossible
give
Assured,’
placed by
the construction
except
contemplation of its
in
Appeal
the Court of
and contended for
actualization, for
use is use
actual
defendants,
future
give
we would
The actual
process of occurrence.
in
meaning, contrary
a restricted and limited
beiftg made
of
the rules of
of
construction
such con-
of
accident was
the time
chauffeur at
tracts. We would have to
resolve
permission
not
uncertainty
ambiguity
doubt or
in
or
favor
Kerner;
therefore,
the use then
by Mr.
of the writer of the
contract.
use)
not with-
(i.e.
was
current
“We therefore conclude that
agreement made in the
in the terms of
mission
the assured to Flail to use the
of
contract,
company cannot be
policy
instance, irrespective
car in
first
such use.”
results of
liable for the
use to which
the car
in his
he
‘permission
possession,
the assured’
was'
of
Substantially
the same
contemplation
meaning
within the
849,
made in Parks
al.,
v. Hall et
the ‘omnibus clause’ and
191,
where the facts so
plaintiffs
therefore liable to
thereunder.”
they
legal question
far as
effect the
under
same,
consideration
though
omnibus clause
that case
The
reads
appear
does
word
“actual”
in the omni as
term ‘named assured’
follows: —“The
bus clause considered there. That
specified
shall mean
the assured
filed in the District
Court
the Parish
One,
Statement
but the term ‘assured’ shall
judgment
of Ouachita and
resulted in
include
the named assured and
other
holding
insurer liable.
It was
person while riding
operating
Appeal
to the Court of
for the Second
such automobile and
(179
868)
Court,
Circuit
So.
with organization legally responsible
judges dissenting,
one of the
reversed the operation, provided:
(8)
used
it.
of the district court and dis
judgment
permission
Assured,
with the
of the named
insurer. A rehearing
missed
or,
individual,
if he is an
changing
granted without
the result. The sion of
adult member
an
household
Supreme
brought
case was
Court other than a chauffeur or domestic serv-
* *
on Writ of Review and
Court re
ant
*”.
Appeal
the Court
and reinstated
versed
In Stovall v. New York Indemnity Com-
Court,
say
the District
pany,
473, 477,
157 Tenn.
8 S.W.2d
ing:
Supreme
A.L.R.
Court
Ten-
the facts
“Under
of this
Hall was
proviso
held that a
nessee
an omnibus
operating
the car with the
operation
“providing
use or
clause
policy, by
express
assured and the
the
terms,
with
assured”
e.,
i.
the omnibus
protection
was made
from
not exclude
did
cover,
assured, any
person using
who
automobile with
with
driving
the owner
or assured
provisions
of the insured car. The
of whether
“regardless
owner
the automobile is
place
“One of the
important changes
driven to a
most
wording
insured the
contemplation
the standard
within the
the older
parted
forms
possession”.
when
with
is the substitution of the
he
phrase ‘actualuse’ for
‘use’.
Automo-
a work
referred to
We are
purpose of
minority
this is clear. Some
A.
Liability
written
bile
Insurance
John
cases have held
that the use is with
Department
Legal
Appleman “Head of
the original
bailment had been
Insurance
Automobile
Farm Mutual.
State
made with consent of the insured. Under
the newer wording it is
Mr.
Illinois”.
Company, Bloomington,
essential
almost
rul-
sympathy
Appleman is not in
the use made of the vehicle at the-
cases
supra,
Hall,
and other
ing in
v.
Parks
the accident must be one
view,
minority
which he described
contemplated by
parties
all
*4
when the bail-
XIII,
Review Volume
Lulane Law
but in
ment was made.
If this clause
the
read:
Page
sound
unambiguous
construction
authority
split of
“Although
is a
require,
which its terms
probably
it will
question wheth
common law
in the
in
result
a number
juris-
of the minority
must
scope of the
er the
be.
altering
dictions
their
results to conform
per
order for the
to the letter in
observed
majority
with the
view."
protected under
permitted
be
son
to
majority
cases
ready comparison
omnibus
of
re-we
(Parks peat
instant case
parallel
in accord
are
pertinent
columns the
sec-
permis
policies:—
the assured’s
Hall), holding
of
tions
both
v.
will
the first instance
use
sion to
“The term ‘named
“IV. Definition of
damage
liable
assured’ shall mean ‘Insured’. —The un-
regardless
by
operator,
only
spe- qualified
caused
latter’s
assured
word ‘In-
v. New
Stovall
use thereafter.
cified
Statement
sured’ wherever
One,
supra.
hut
the term
Indemnity Company,
includes not
York
insured,
‘assured’ shall
in- named
reach
to
are construed
statutes
states
any person
clude the named as- also
sured and
while
Auto
v. Milwaukee
Drewek
result.
same
any
other
the automobile
N.
Co.,
240
207 Wis.
Insurance
mobile
riding and
or or-
Liberty Mu
v.
(1932); Guzenfield
881W.
legally operat- ganization legally
in or
Co.,
190 N.E.
286 Mass.
Ins.
tual
sponsible
ing such automobile
the use
(1934).”
person thereof, provided
organization legal-
or
the declared and
Appleman (Page
ac-
quote
Mr.
To
ly responsible
tual
for its
use of the auto-
116):
provided:
operation,
mobile is
has had an interest-
majority rule
“The
~bemg
(8)
used and
or
early
reach-
development. Some
cases
ing
permission ‘commercial’,
each as
began
courts
Other
results.
rather wild
the named Assured defined
of
or if he is
capable
reasoning until
adopt
their
provided,
further,
to
individ-
logic and ual with the
challenging the
aotual'use is
lawyers began
sion of an adult mem- loith the
justice decisions.
about
those
of his household
ber
other than a chauf-
the named insured
authority
years
great weight of
six
last
* * *
(Italicizing
be
the actual use of
come to
has
ours)
or domestic
feur
ser-
must be
at
time
accident
vehicle
*
**
(Present case)
”.
vant
contemplated
when
bailment
ours)
(Italicizing
words, the
at which
In other
made.
(Parks Hall)
v.
expire must not have
was to
bailment
The
of counsel
to the effect
place which the automobile
passed. The
that “the
of the named insured
specified
be
or con-
must
one either
is used
stands,
must, as the clause
extend not
parties. The
templated
use made
merely
automobile,
the time of the accident
but to
speci-
actuality of
one either
that use —to
act-
must
present,
these elements are
Unless
ually
automobile.
fied.
made of the
Now the
taking
use of the auto-
unauthorized
is,
(that
presently,
Hebert'was
conversion,
constitutes
mobile
instantly,
currently) making
cannot be found
exist.”
mission
at the time of
accident was
scope
Referring
provision
grant-
'of the
similar
that outside
company is
insurance
therefore
instant
Mr. ed. The
found
says
110) :
(Page
liable.”
Appleman
are
Appleman
claimed for it.
been so
Mr.
would have
views
The
simple
by counsel and
have indicated
intention
relied
confidently
such,
the use
appropriate
find
We
pressed upon our consideration.
instance,
agree with
however,
requiring that
the use of
ourselves,
unable
change
automobile be within
The
conclusions.
Appleman’s
Mr.
granted.
seem
use” does
“actual
from “use” to
important nor is
us in
sense
The
de
best that can
said in
Moreover,
statement
purposé clear.
fendant’s
is am
behalf
that the clause
almost
wording it is
the newer
that “under
biguous, but the
viewed in this
situation
vehicle
the use
essential that
light
appears by
would
same as
be the
be one
must
of the accident
at the time
following
authority quoted
citation of
parties when
actually contemplated
all
Hall, supra:
Parks v.
us en
seems to
made”
the bailment
“
‘An
important
contract and
tirely gratuitous.
“permis
the rules established for
construction
clause is
proviso of the
last
apply
written
instruments
to contracts
have been
automobile must
sion”. The
Law,
Ruling
insurance.’ 14
925;
Case
“permission”
the named
§
4 La.
used with
p.
Co.,
Wallace
been us
v. Insurance
actually have
assured and
289;
Co.,
as
Brown v. Life &
Ins.
“permission”
ed with
*5
332; Civ.Code,
La.App.,
“act
146 So.
arts.
the word
The introduction
sured.
1945.
with this rule ‘an
word “use”
accordance
qualification
ual”
policy
of the automobile collision
con-
connotation
be
change the
is said to
scope
according
intent of
the
strued
evident
use within
mean
text
as to
so
parties,
proviso
the
If the
to be
permission granted.
derived from the words
subject
present policy
matter
appears
they
could be so
to which
it
late, and
naturally
usually
the matters
one
in Parks v.
interpreted the
considered
incident
may
thereto. The
Hall, supra,
language employed
also
so construed
policy
is
interpolate
equivalent
to be
construed
if
so as to
we
effectuate
permis
insurance and
phrase “within
not for the
it;
may
defeating
therefore,
one case we
do
granted” in the
if
sion
other,
being
ambiguous
used
no words of
is
or admits
so in
constructions,
proviso.
reli
import
either
it will
be construed in
favor
qualifica
of insured
word “actual” as a
and
ance
protect
way
remark
such' a
as to
bring
“use”
about this
to
tion
interest of
untenable.,
paid
us
insured who has
seems to
result
consideration for
able
* * *’
indemnity.
Corpus
Juris,
Civil
of the Revised
Code
Article
790, 791;
pp.
Heiman v. Pan
§
Ameri-
as follows:
reads
Co.,
can Life Ins.
183 La.
“The words of
contract are
be un-
to
195;
Metropolitan
Travia v.
Life Insur-
derstood,
law,
those of a
like
the com-
Company,
ance
6S9 two clauses together, JANVIER, Judge (dissenting). we see that where the policy uses the words “actual use” my agree with associates I am unable to first clause it can only means—-and mean— express- originally and adhere to views the use to which automobile being Casualty & ed. See Haeuser v. put think, at the time of the I occurrence. al., La.App., 185 So. Company et then, has a clear established that, definition of term use” “actual presented fact, the oral at therefore, when, in the second impressed with I much rehearing, was o.n policy provides protect that it shall the bor- fact, to which no reference was provided rower “the actual use is pol- original opinion, is that the which insured”, it means clause”, which icy itself, in “omnibus protected provided that the borrower is which and with clause with which put at being concerned, makes use alone moment of the accident is a use for which way as to in such a words “actual use” granted permission. named insured were in- words clear those any- My mean that, cannot tended to mean —and associates seem to feel when the the auto- use which framers of thing else than —the inserted in the sec- being put use”, of the ond clause they mobile was at the term “actual accident; words, simply cover- in other meant protect- that the borrower is is extended age clause” of the “omnibus the use to put which he has the car only to who has its own terms the time of the accident is one of those sion included within th® “declared uses”. But the time devoted at obviously to which it policy pro- what the of the occurrence. vides. It might provided for cover- age if, of the borrower time of the stipulates protection of The clause *6 accident, he was using- the car for one of provides that this “insured” and the declared uses. But it does not do any person using “insured” shall include thing. It states that it covers the permission “named the car with the only borrower if the named insured has contained nothing else was insured”. If given permission his for the “actual use” would be I see that there can to which the put car is being at the time construing possibility of as occurrence, I already extending coverage any person ini- shown that it has established as a definite tially car, given permission to use the. meaning for the words “actual use” the gardless whether had use which being put it is particular to which the accident. There cari no doubt here being put the car was at the time the “named insured” 'had not This occurrence. was the result reached his any pur- to use the car for Hall, in Parks v. So. La. pose other than return it garage. stop the “omnibus But clause” does Therefore there was no for the It unqual- there. reads as follows: “The and, result, “actual use” there was no- ified word ‘Insured’ wherever includ- coverage. employe When the devoted the only insured, es not named own, certainly car to any person the automobile and cannot said the “actual use” to organization respon- being put which was provided thereof, sible for the use mission of the insured”. “named declared and actual use ‘commercial’, dissent, respectfully I provided, each fur- ther, the actual use with Application On for Correction of Decree. named insured.” PER CURIAM. plain that even the “named insured” Counsel protected directs our has declared the he attention to the fact in amending uses to the automobile will be from we failed decree judg- and the “actual use” of those declar- is one ment which we rendered ed, that, provides goes and it further and Company concerned, so should be in far borrower solido with Walter Hebert. The protection oversight provided him “the is extended to should be corrected and it is so ordered. is with the Now, analyze if we these insured”. Amended.