D. & D. Planting Co. v. Employers Casualty Co. , 1960 La. App. LEXIS 1121 ( 1960 )

HARDY, Judge.

This is an action by plaintiff partnership for the recovery of property damage sustained by a farm tractor and an ammonium nitrate fertilizer machine as the result of an automobile collision. Joined as a party plaintiff is Fidelity Phenix Fire Insurance Company, which seeks recovery of the amount paid for damage to the tractor, which it had insured. The appeal is from a judgment rejecting plaintiff’s demands.

This is a companion suit to, and was consolidated with, the suit of Edwards v. Employers Casualty Co., 121 So.2d 540. The facts are set forth in the opinion of the consolidated case, to which referencei is made.

Made defendants in .the instant suit were Employers Casualty Company and its insured, E. F. Neely, Jr.

Plaintiffs prayed for judgment in favor of D. & D. Planting Company, a partnership composed of Malcolm D. Dutton and Charles D. Day, against the defendants, in solido, in the full sum of $865.64, representing the $50 deductible loss on the insurance payment for damage to the tractor, and the additional sum of $815.64 as the estimated cost of repairs to the fertilizer machine. Plaintiff, Fidelity Phenix Fire Insurance Company, prayed for judgment in the sum of $238.73, representing the amount paid under its policy of insurance upon the tractor.

There appears to be no dispute as to the correctness of the claim for damages sustained to the tractor, but defendants urge that the estimate of the cost of repair of the damage to the fertilizer machine exceeds the total value of the machine at the time of the accident. We think this position is well taken. The evidence discloses that no repairs had ever been undertaken and that the actual value of the machine as of the date of the accident was estimated at approximately $600. From these facts it can only be concluded that plaintiff owners did not deem the machine worth the cost of repair, and, accordingly, the amount of recovery should be limited to the actual value.

The judgment appealed from is annulled, set aside and reversed, and

It is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, D. & D. Planting Company, a partnership composed of Malcolm D. Dutton and Charles D. Day, and against the defendants, Employers Casualty Company and E. F. Neely, Jr., in solido, in the full sum of $650.

It is further ordered, adjudged and decreed that there be judgment in favor of plaintiff, Fidelity Phenix Fire Insurance Company, and against the defendants, Employers Casualty Company and E. F. Neely, Jr., in solido, in the full sum of $238.73.

Both of the above judgments shall hear interest at the legal rate of 5% per annum from the date of judicial demand until paid.

All costs of both courts are assessed against defendants-appellees.