Duncan v. Pedarre , 164 So. 498 ( 1935 )

For the reasons set out in our first decision, I respectfully dissent from the present opinion. The other members of the court seem to think that the rut in the road was a latent defect, and that there was, therefore, no negligence on the part of the driver. I cannot concur in this conclusion. The testimony of Mr. Maggio sitting in the front seat with the driver is not disputed that he saw the rut in time to stop the car or slow down if he had been driving. He assumed that Mr. Roumain, the driver, saw it and did not say anything. He also gave this evidence:

"About as near a description as I could possibly give is that the front wheels of the car hit the rut, the springs gave in, and you could hear the impact between the body and the axle. Roumain immediately stepped on the brakes. It all happened very quickly. Naturally the back wheels done the same thing; the back of the car hit the axle also." Ev. 27.

The car struck with sufficient force not only to cause the front and back of the body to strike the axle, but also with such force as to fracture the plaintiff's back. It is true Mr. Roumain, the driver, said that the rut was ten or twelve inches wide and about six inches deep and that there was considerable dust in the rut and he did not see it before the accident, but, on the other hand, he said he was talking to Mr. Maggio about that time and that he guessed he would have seen it if he had been paying strict attention. There is really no evidence to offset what these two parties said, and as the case was first heard and decided by the late lamented Judge Favrot in favor of the plaintiff on this point, as well as on the other points in the case, and later the record was gone over by his honor, Judge Womack, and decided in favor of the plaintiff on this point, it doesn't appear there is any reason to conclude that this evidence would justify us in reaching any different opinion from what these presiding judges found or from that expressed in our first decision.

The question in this case which was argued and considered at more length was as to the sufficiency of the notice given the defendant insurance company. The facts as to that are that Pedarre, the insured, gave the company notice as soon as a demand was made on him. I adhere to what we said in our first decision that this was a reasonable notice under the circumstances of the case. The plaintiff, Mr. Duncan, did complain in the presence of the assured at the time of the accident that his back was broken, and he suffered pain on the trip to Toledo; but it is apparent that nobody considered his injury of serious nature at that time, or, for that matter, until he went to the Charity Hospital in New Orleans some months later and for the first time had an X-ray made showing the fracture of his back. Shortly after he came back from the Charity Hospital to Baton Rouge, knowing that he did have a broken back, he made a demand on the assured, and the assured immediately notified his insurer. I can't believe Mr. Duncan would have continued on the trip to Toledo, or that his host, Mr. Pedarre, would have allowed him to do that if he had had any idea as to the extent of Mr. Duncan's injury, or if he had known that it was of such a serious nature as might result in a claim by Mr. Duncan for personal injuries. Even the doctors in Baton Rouge, who treated Mr. Duncan upon his return to Baton Rouge, thought he was suffering from the pain in his back because of his work as a tailor and because of rheumatism, and as we said in our first opinion: "But certainly the plaintiff and Pedarre cannot reasonably be supposed to have had grounds for suspecting that his pain and growing incapacity was due to a fracture of the vertebra, when all of the physicians he consulted were of the opinion that his trouble was due to a rheumatic condition, and had presumably advised him accordingly." Since our first decision in this case, the Supreme Court of the State granted a writ, and reversed the decision by the Court of Appeal for the Second Circuit in the case of Franklin A. Jones v. Shehee-Ford Wagon Harness Co., 163 So. 129, 131, in which the Supreme Court said in part as follows:

"Under policy contracts similar to the one before us, the law does not require the insured to give notice to the insurance company of an accident unless the insured has reason to believe that the accident has caused or will cause loss covered by the policy. See Blashfield's Cyclopedia of Automobile Law, vol. 3, p. 2663, and the decisions cited. The condition in the policy itself, which we have quoted, requires notice to be given only ``of any accident causing loss covered hereby.' As soon as the insured, in this case, was informed that the accident had caused a loss covered by the policy, the insured gave notice to the insurer. That was a substantial if not literal compliance with the condition of the policy. The word ``immediate,' when used in such ``Conditions' in policies of insurance, does not mean ``instant.' It means within a reasonable time, or without unnecessary delay, and it admits of a reasonable excuse for some delay. Blashfield's Cyclopedia of Automobile Law (9th Ed.) vol. 33, p. 2662; Huddy's Cyclopedia of Automobile Law (9th Ed.) vol. 13-14, § 154, p. 186 et seq. The policy itself, in this case, so provides. Immediately following the clause which we have quoted, is this: ``Failure to give any notice required to be given by this policy within the time specified herein shall not invalidate any claim made by the Assured if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.' In this instance the insured gave notice to the insurer immediately when the insured received notice that the accident was one ``causing loss covered' by the policy. If the insured was negligent in not finding out sooner that the accident had caused a loss covered by the policy, it was incumbent upon the insurer to plead and prove such negligence on the part of the insured. Our conclusion is that the insurer in this case did not prove a breach of the contract of insurance."

Under the principle so announced, I believe a reasonable, timely notice was given in this case. In this regard, it is important to note that the only disadvantage the defendant insurance company claims it suffered because of the delay in receiving the notice was the fact that the adjusters or investigators of the company were unable to locate the road in Tangipahoa parish where the accident was supposed to have happened, which was a detour road, after so long a lapse of time; but the insurance company failed to sustain its case on this score for the reason that apparently the company made no effort to examine the situs of the accident until many months after the notice was actually received by the company from the insured, Mr. Pedarre. So it would seem the company suffered no real disadvantage.

I also believe the doctrine of Edwards v. Fidelity Casualty Co., 11 La.App. 176, 123 So. 162, decided by the Court of Appeal for the Parish of Orleans, is sound. In that case, unlike the present, without any reason to justify such action, the assured did not notify his insurer until some eleven months after the accident. The Court of Appeal for the Parish of Orleans held that the immediate notice clause did not apply to the injured person who has a direct cause of action under Act No. 253 of 1918, § 1, now amended by Act No. 55 of 1930, § 2. The court said that clause in the policy applies only to cases where the insured has paid a damage claim and seeks to be reimbursed by his insurer, where the insured has failed to give reasonable notice. It is true that the Court of Appeal for North Louisiana has held differently in the case of Howard v. Rowan et al., 154 So. 382; but as we said in our first opinion, the doctrine of the Edwards Case seems more reasonable, for if the injured person is cut off by failure of the insured to give a notice, or to give a reasonable notice, then the independent action which exists in favor of the injured person under Act No. 55 of 1930 would be wholly dependent on the will of another. The law does not require the registration of public liability policies and there's no way for the injured person to know if there is a policy, or where there is one, the name of the company, and nature of the policy. It would seem unreasonable to interpret Act No. 55 of 1930 to mean that the injured person has an independent, direct action against the insurance company, but that this action can be defeated by the failure of an immediate notice by the insured, where the injured person has no way whatever to see that such notice is given; and particularly where the policy provides only for the giving of notice by the insured, not by the injured party. Such is apparently not the intention of the lawmakers.

For these reasons, and for the reasons set out more in detail in our first decision, I respectfully dissent.