I fully agree with the reasons given by my colleagues in reversing the judgment appealed from and remanding the case for the purpose of permitting plaintiff to supplement this petition. I am, however, unwilling to concede that the petition is defective *Page 277 or that it fails to state a cause of action against the General Accident, Fire Life Assurance Corporation, Ltd.
The plaintiff alleges, in substance, that the General Accident, Fire and Life Assurance Corporation, Ltd., had issued a policy of liability insurance on the automobile in which he was riding and that, under the terms of that policy, it became liable for the injuries he received as a result of the driver's negligence. The policy, which was produced in response to a prayer for oyer, exhibits that it was issued to A. Burglass, the father of the driver of the automobile, and that the insurer obligated itself to indemnify the named assured and any other person operating the vehicle with permission and consent of the named assured against liability imposed upon them by law for bodily injuries sustained by third persons as a result of the negligent operation and use of the automobile.
The argument of the insurer on the exception of no cause of action is that, since the policy reveals that it was issued to A. Burglass whereas the petition alleges that the car was being driven by his son, Milton Burglass, at the time of the accident, it is liable to plaintiff only in the event it is alleged and proved that Milton Burglass was driving the car with the consent of his father and that plaintiff's injuries were due to the negligent operation of the vehicle.
It seems to me that the question as to whether Milton Burglass had the permission of his father to use the automobile involved in the accident is properly a matter of defense which should be raised by the insurer in its answer. I feel that it is exacting too much of the plaintiff to require him to allege that such permission had been granted by A. Burglass to Milton Burglass because he is obviously not in a position to know whether such is or is not the case. If it is incumbent upon the plaintiff to charge that Milton Burglass had the permission of his father to use the automobile in order to state a cause of action against the insurer, it will be necessary for him to submit evidence in proof of that averment to sustain his case. This places him at a serious disadvantage because it does not seem likely that he has or should have any knowledge concerning those facts.
It strikes me that some reasonable rule should be adopted by the courts with respect to this type of case. Here, the defendant has issued a policy covering the owner of the car against legal liability for injuries received by third persons as a result of the negligent operation of the vehicle. It has also insured, under the omnibus clause of the policy, all persons driving the car with the consent of the owner. Why should a plaintiff, who is injured by the negligence of the driver of a vehicle, be required to allege that the automobile was in charge of a person who had the permission of the owner to use it when the chances are that he has no knowledge whatsoever on that subject? The insurance company in such instance is invariably in possession of the true facts and it is my conviction that any question concerning the lack of permission to the driver of the car from the owner should be set forth by the insurer as a special defense in the case.
This court has recently had occasion to decide a case which I believe fully demonstrates the soundness of my position in this matter. In Bates v. Hayden, National Casualty Co., La.App.,188 So. 751, 753, the plaintiff alleged that the automobile, which was being driven by an employee of the defendant Hayden, had been insured against public liability by the General Accident, Fire and Life Assurance Corporation, Ltd. (the same defendant appearing in this suit). The allegations of plaintiff's petition were denied in the answer of the insurer. On the trial of the case, the liability policy, which was produced upon plaintiff's request, exhibited that it had been issued to Riverside Lumber Company, Inc., and not to Hayden as charged in the plaintiff's petition. The insurer, on appeal of the case to this court, sought to be exonerated in the matter on the ground that plaintiff had failed to prove the allegations of his petition. We rejected the contention in the following language:
"We find no substance in the argument. Act No. 55 of 1930 permits an injured plaintiff to bring a direct action against the insurer of the vehicle and the latter has the right to assert all lawful conditions contained in the policy in the same manner as if the suit had been filed against it by the named assured. There was no necessity for the plaintiff to join the owner of the truck as a party-defendant and his allegation that the policy was issued to Hayden may be treated as surplusage. The only matter of importance is that the defendant insurer issued a public liability *Page 278 policy by which it agreed to indemnify all persons legally responsible for the negligent operation of the truck. This is its agreement and, as Barrett is an `Additional Assured' under the omnibus clause of the policy in evidence, it cannot be heard to say that it is being sued on a contract it did not make merely because the plaintiff alleged, on information and belief, that the policy was issued to Hayden when it was made in the name of Riverside Lumber Company, Inc. Moreover, we cannot see that the defendant insurer has been prejudiced in any manner as a result of plaintiff's erroneous averment. After all, it issued the policy and it was in a better position than plaintiff to know the terms and conditions of the contract. It has not only insured the Riverside Lumber Company, Inc., but has also contracted to protect the defendant Barrett who was operating the truck under the instructions, and with the permission, of the named insured."
Since it is my opinion that the judge of the lower court was in error in maintaining the exception of no cause of action, I respectfully dissent from the majority opinion maintaining the district court on that point but I concur in the decree which reverses the judgment and gives plaintiff an opportunity to supplement his petition.