Charles v. Champagne , 284 So. 2d 626 ( 1973 )

SAVOY, Judge.

This is an action ex delicto instituted by plaintiff against defendants, Robert L. Champagne, a minor, and his father, Harold Champagne; Harold’s insurer, Fireman’s Fund Insurance Company; Lafayette Motor Company, Inc.; and its insurer, Phoenix Insurance Company, as a result of an accident which occurred on December 2, 1967, on West Simcoe Street, in the city of Lafayette, Louisiana, between an automobile owned and driven by Lena Charles and an automobile owned by Lafayette Motors and driven by the minor, Robert L. Champagne. The suit was amended by adding as a party plaintiff, the minor, Deborah Green, a guest passenger in the Charles vehicle and represented by her mother as tutor.

Fireman’s filed a motion for summary judgment based on the policy provisions which excluded Robert from coverage. The motion was sustained, and the instant suit against Fireman’s was dismissed. Plaintiff did not appeal, therefore this judgment as to Fireman’s is final.

Lafayette Motors and Phoenix filed an answer denying liability on the principal ground that the Champagne car was brought to Lafayette Motors for repairs and that the car involved in the accident was loaned by Lafayette Motors to Champagne for his use and not to be used by anyone else.

An exception of minority was filed on behalf of Robert L. Champagne, and plaintiffs amended their suit to bring in Harold Champagne as administrator of the minor, Robert L. Champagne as a defendant.

Harold answered individually and as administrator for his minor son, stating that the sole cause of the accident was the negligence of Lena Charles.

After trial, judgment was rendered in favor of plaintiffs, and against defendants, Harold Champagne individually, and as administrator for his minor son, Robert L. Champagne, and Phoenix Insurance Company of Hartford, individually, jointly and in solido.

The suit as to Lafayette Motors was dismissed.

Lena Charles was awarded $1,750.00 as general damages and special damages for loss of wages and property damages to her automobile. Deborah Green was awarded $325.00 as general damages. Plaintiff appealed complaining of the inadequacy of the award for general damages to Lena Charles. The award to Deborah is not contested.

Defendants answered the appeal alleging that the district court erred in finding that Robert Champagne was driving the Lafayette Motors automobile with its consent and permission.

The issues on appeal are:

1. Did Robert Champagne have the express or implied permission to drive the Lafayette Motors car.

2. Did the district judge abuse his discretion in the amount awarded to plaintiff, Charles.

Jake Munch, shop foreman for Lafayette Motors, testified he loaned the car to Harold Champagne with the distinct understanding that he was not to let anyone else drive the car. Harold Champagne testified to the contrary. The trial judge accepted Champagne’s version of the conversation. This is a question of fact, and we will not disturb the district judge’s finding. We conclude that Harold had the unrestricted use of the car and that it was permissible for him to allow his minor son, Robert, to drive the automobile.

We next address ourselves to the issue of quantum. Without detailing the medical evidence we agree with the trial judge that the injuries complained of were not serious in nature and that the award made was adequate.

For the reasons assigned, the judgment of the district court is affirmed at appellant, Lena Charles’, costs.

Affirmed.