Dorothy Milam Jernigan v. Allstate Insurance Company ( 1959 )

JONES, Circuit Judge

(specially concurring).

As is shown by their opinions on the petition for rehearing in this case, the judge who, as counsel, was successful in the Aponaug case¹ and the judge who. wrote the opinion are not in agreement as to its meaning. Whatever that case may hold, it should be remembered that it was a diversity case arising in Mississippi and the decision was intended as a. statement of the law of that State. We are here considering a case arising in Louisiana and calling for an application of Louisiana law. The original opinion here and the opinion on rehearing of Judge Cameron mention the Louisiana case of Barringer v. Employer’s Mutual Liability Insurance Co., La.App., 62 So.2d 173, which was decided in the same year as Aponaug. The dissenting opinion of Judge Rives refers to the applicable language in Barringer as dictum which should not cause a departure from Aponaug. In the Barringer case it was. said:

“We find it unnecessary to discuss the other defenses raised by the insurer, other than to say that we are in accord with our brother below in his reasoning that the policy of insurance in the instant case covered and affected any assault and battery committed by an employee of the insured acting within the scope of his-authority. Defendant contends that though the policy expressly provides, ‘assault and battery shall be deemed an accident unless committed by or at the direction of the insured’ the definition of ‘insured’ contained in the policy includes the operator of the vehicle, namely an employee, such as Sims in this instance, with the result the operator as well as the insured comes within the exclusion. We reason as did the judge a quo-that the clause is in the nature of an omnibus clause, however, we think that the limitation ‘unless committed by or at the direction of the insured’ refers only to the named insured. To otherwise hold would! be to render this clause completely ineffective, an end surely not intended by the parties thereto.” Barringer v. Employer’s Mutual Liability Insurance Co., 62 So.2d 173, 177.

If the foregoing be dictum, I think it may be said of it, as the Supreme Court has said,

“At least it is a considered dictum, and not comment merely obiter. It has capacity, though it be less than a decision, to tilt the balanced mind toward submission and agreement. * * * In controversies so purely local, little gain is to be derived from drawing nice distinctions between dicta and decisions. Disagreement with either, even though permissible, is at best a last resort, to be embraced with caution and reluctance. The stranger from afar, unacquainted with the local ways, permits himself to be guided by the best evidence available, the directions or the counsel of those who dwell upon the spot.” Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 242, 77 L.Ed. 610. See Polk County, Georgia v. Lincoln National Life Ins. Co., 5 Cir., 1959, 262 F.2d 486.

I think the rule announced in Barringer is applicable to the factual situation before us and the rule there stated is binding upon us. Therefore, I concur in the denial of the petition for rehearing.

1 . Western Casualty & Surety Co. v. Aponaug Mfg. Co., 5 Cir., 1952, 197 F.2d 673.