Hebert v. ArmsteadHebert v. Armstead
Armentor & Resweber, by Minos H. Armentor, New Iberia, for plaintiff-appellee.
Caffery, Duhe & Davis, by Jerry Oubre, New Iberia, Davidson, Meaux, Onebane & Donohoe, by Farlеy Sonnier, Lafayette, Voorhies, Labbe, Fontenot, Leonard & McGlasson, by David S. Foster, Lafayette, for defendant-appellee.
FRUGÉ, Judge.
This is an appeal by defendant from a trial court ruling which granted a motion for summary judgment to third party defendant, Home Indemnity Company, and another ruling which sustаined the peremptory exception of prescription to plaintiff, defendant in reconvention.
Plaintiff, Ralph J. Hebert, and defendant, Hеnry Armstead, Jr., were involved in an automobile accident on July 30, 1965, approximately one mile east of New Iberia, on Louisiana Highway 86. Ralph J. Hebert was driving an automobile owned by his employer in a westerly direction toward New Iberia and Henry Armstead, Jr., was driving his automobile in an easterly direction toward Loreauville. A collision occurred and both parties were injured.
On June 22, 1966, Ralph J. Hebert filed suit against Henry Armstead, Jr., and Home Indemnity Comрany (hereinafter, Home) as his alleged insurer. On October 21, 1966, defendant Armstead filed a reconventional demand against the plaintiff, and a third party demand against Home, which, if obtained, would hold Home responsible for all damages for which Armstead may be liable to Hebert. Plaintiff Hebert, the defendant in reconvention, filed a peremptory exception of prescription of one year and Home, third party defendant, filеd a motion for summary judgment, alleging that the car involved in the accident was not insured by Home. Both Hebert‘s exception of prescription and Home‘s motion for summary judgment were granted by the trial court. Armstead, as plaintiff in reconvention on the prescription issue, and as third party plaintiff on the motion for summary judgment then prosecuted this appeal.
In regard to the exception of prescription, plaintiff in reconvеntion makes two basic arguments. First, that the one-year prescription of
That the one-year prescription of
“An analysis of the pertinent articles of the Code of Civil Procedurе, referred to by the plaintiff in reconvention, reveals no changes which would in any way affect Civil Code Article 3536, which provides for the prescription of one year to actions of a delictual nature; nor does the Code of Civil Procedure, in any way, modify the existing jurisprudence with respect to the application of this one year prescriptive period to reconventional demands.”
Plaintiff in reconventiоn‘s second argument is that by virtue of
“If the peremptоry exception has been pleaded in the answer, or subsequently, but at or prior to the trial of the case, it shall be tried or disposed of on the trial.”
However, official comment (b) explains the article in this manner:
“The rules enunciated in the above article with respect to the trial of the peremptory exception, do not interfere in any way with the trial judge‘s discretion in such cases. They merely prevent the defеndant‘s using dilatory tactics in filing the exception after answer, and then insisting upon the trial of the exception in an effort to delay the trial of the case on its merits.”
As the comment points out, the article merely reinforces the trial judge‘s discretion, by making it clear that he is not required to try the peremptory exception whenever the defendant insists. The case of Wischer v. Madison Realty Company, 83 So.2d 143, 144 (Orl. Cir., 1955), reflects the prevailing view, wherein the court said:
“The various appеllate courts of this State have repeatedly expressed the opinion that where the maintenance of an exception will justly tеrminate the litigation it should be disposed of before entering into the merits thereof so as to eliminate a protracted and unnecessаry trial.”
Also, Clostio‘s Heirs v. Sinclair Refining Company, 36 So.2d 283 (La.App. 1st Cir., 1948). Accordingly, the trial judge‘s ruling in regard to the peremptory exception of prescriрtion is proper both as to the merits of the exception and the time of trial of the exception.
The second issue of this suit is whether third party defendant, Home Indemnity Company, was entitled to summary judgment against Armstead, defendant and third party plaintiff. The evidence in the record shows that dеfendant, third party plaintiff, owned three vehicles. They were a 1962 Ford passenger car, a 1963 Chevrolet passenger car, and a 1955 Chevrolet pick-up truck. It is undisputed that the third party plaintiff was driving the 1963 Chevrolet car at the time of the accident.
Policy Number 7609645 issued by third party defendant to third рarty plaintiff and admitted by third party plaintiff to be the only one in force, defines four types of automobiles that would be covered by the pоlicy.
a) “A private passenger, farm or utility automobile described in this policy
for which a specific premium charge indicates the cоverage is afforded.” The 1962 Ford is covered under this provision, but the 1963 Chevrolet is not. (p. 20 tr.)
b) “A trailer owned by the named insured“. Clearly the 1963 Chevrolet could nоt be considered a trailer.
c) “A private passenger, farm or utility automobile, ownership of which is acquired during the policy period provided (1) it replaces an owned automobile as defined in (a) above, or (2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within thirty days аfter the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile.”
The record indicates that the third party plaintiff acquired his 1963 Chevrolet on December 6, 1964. Policy Number 7609645 was issued on December 12, 1964, therefore the 1963 Chevrolet was not “acquired during the policy period“.
d) “A temporary substitute automobile.”
This fourth category of covered cars is defined as “any automobile оr trailer not owned by the named insured, while temporarily used with the permission of the owner as a substitute to the owned automobile or trailer when withdrawn from normal use because of its breakdown, repairs, servicing, loss or destruction.” The record clearly reflects that third party plaintiff ownеd the Chevrolet and drove it regularly. It was not a “temporary substitute automobile” in fact, nor as defined by the policy. Therefore, the Chevrolеt does not come under any of the four definitions of “owned” automobiles covered by the policy as the trial judge properly held.
For thе foregoing reasons, we affirm the judgment of the trial court granting the peremptory exception of prescription to the defendant in reconvention and the motion of summary judgment to the third party defendant. All costs of this appeal are to be paid by the appellant.
Affirmed.