This rehearing was granted for the purpose of permitting further consideration of the cause. The issues presented are well stated in our original opinion.
On the first hearing, we found that John Chaney, the driver of the car that struck plaintiff, was grossly negligent. This was the view of the trial court, and it is still entertained by us. Furthermore, we then held that such driver was acting as an agent of the defendant, Town of Lake Providence, and that his principal was responsible for the tort committed and damages occasioned by him. It was also our holding that the case presented no question of negligence on the part of the plaintiff, in as much as contributory negligence was not specifically and properly pleaded by defendants; and this position has been criticized by defense counsel in their application for a rehearing and the supporting briefs.
The district court's judgment, which awarded plaintiff damages against said town and its insurer, was amended by us to the extent of providing a reduction in the quantum, and, as amended, it was affirmed.
After further considering the case, we are of the opinion that the said John Chaney had the last clear chance to avoid the accident; and that, even if the negligence of plaintiff was properly pleaded by defendants and should be considered, his negligence proximately caused the mishap and the resulting injuries, while her negligence was only the remote cause. This conclusion is founded on the entire evidence, and particularly on the testimony of W.H. King, a witness for defendants. The witness King states that he was driving an automobile and following Chaney at a distance of from 150 to 200 feet. Chaney's car traveled 18 or 20 miles an hour through the intersection of Davis and Second streets, and struck plaintiff momentarily after its brakes were applied. He, King, observed both the plaintiff and her companion, Mr. Fitzgerald, while they walked over the car bridge and continued walking diagonally across the street; and he knew of nothing to prevent Chaney's seeing them. There was no vehicle or other object between the pedestrians and the cars of Chaney and King. Plaintiff was "looking down in a bended motion", and did not stop until hit.
The accident did not occur as plaintiff stepped from the bridge. She had proceeded at least eight feet into the street when struck. This distance is shown by King's testimony and also by the fact that an automobile was parked on the west side of the street a few feet south of the bridge, which served to prevent Chaney's driving near the western edge.
There is evidence in the record tending to show that plaintiff and Fitzgerald stopped after entering the street, and that as Chaney's car approached she stepped suddenly in front of it. This conflicts with the testimony of King; and because of the location and the unobstructed view that he enjoyed at the time, his version is accepted.
As King, who was following Chaney, observed the unfortunate woman inattentively moving toward, into and in the street, Chaney also could have seen her in time to avert the accident if he had been keeping a proper lookout. The duty owed by Chaney was not discharged, and under the authority of Jackson v. Cook,189 La 860, 181 So. 195, responsibility for the collision and its consequences must be charged to him.
After reaching the conclusion, on the rehearing, that John Chaney's negligent driving was responsible for the accident, we submitted the following question to the Supreme Court and asked for instructions: "Assuming that the driver of the automobile, the superintendent's son, had the last clear chance to avoid the accident, but failed in his duty to do so, under the facts and circumstances above stated is the Town of Lake Providence legally responsible for the damages occasioned by his negligence?"
In its decision of date March 6, 1939, rendered by a divided court, the question was answered in the affirmative.
The Supreme Court granted a rehearing, and, again by a divided court, reversed its original holding and finally held that the "Town of Lake Providence is not subject to liability for any injury done to the plaintiff by negligence on the part of the driver of the automobile, * * *." 192 So. 95, 104.
It must now be determined whether or not there is liability on the part of the *Page 526 town's insurer, the Maryland Casualty Company.
Plaintiff, in her petition, averred as follows: "Your petitioner has not seen the said insurance policy, but she avers that it is a contract between the said Maryland Casualty Company and the said Town of Lake Providence, under which the said Maryland Casualty Company agrees to pay any judgment which may be rendered against the said Town of Lake Providence for damages for injuries inflicted upon any person through the use of said automobile. She avers that the said insurance policy was in full force and effect at the time she was injured as hereinabove set out, and she avers that she has the right to make the said Maryland Casualty Company a party defendant in solido in this suit."
The answer of the insurer admitted the issuance of a policy insuring said town as to public liability arising out of the ownership and operation of the automobile that injured plaintiff. It averred, however, as is shown in detail in our original opinion, that under the terms, limitations and conditions of the contract it is in no way legally liable unto plaintiff.
After the joining of issue, but before trial, plaintiff petitioned the court for an order directing the Town of Lake Providence to produce the policy in open court. She averred that, "she expects to prove by the said policy that under its terms the said Maryland Casualty Company made itself responsible for any damages inflicted upon any person through the use and operation of the said automobile without any conditions or limitations upon said liability." It was produced as requested and ordered.
During the course of the trial, plaintiff offered the policy in evidence. The insurer objected to the introduction "for the reason that the document offered enlarges the pleadings", and in connection with the objection it asked that if the offering be admitted, such admission be restricted to the extent that "it does insure or purports to insure the defendant Town of Lake Providence." The court permitted the policy's introduction with the restriction or limitation urged by the insurer. In our opinion, there was error in this ruling. Under the averments of the insurer's answer and the allegations made by plaintiff in her petition to require a production of the contract, said policy, which is in the record, should have been admitted for all purposes.
The named assured in the contract is "Town of Lake Providence, and/or the Mayor and Board of Aldermen of the Town of Lake Providence, Louisiana". Also recited therein is that the automobile covered will be used for pleasure and business purposes, and that the maximum legal liability for bodily injury or death for one person is $50,000. In the paragraph marked "Additional Interests Covered", it is stated: "The insurance provided by this policy is hereby made available, in the same manner and under the same conditions as it is available to the named assured, to any person operating, and/or to any other person while riding in, and/or to any other person, firm or corporation legally responsible for the operation of, any of the automobiles described in the statements, provided the use and operation thereof are with the permission of the named assured, * * *."
Although the Supreme Court found and held that John Chaney, at the time of the accident, was not performing any duty that his father was employed to perform, and was merely rendering his father a service while the latter was engaged elsewhere, it appears certain that the machine was then being operated and used with the permission of the named assured within the meaning and intendment of the above quoted policy provisions. The driver was returning the automobile to the place where it was customarily kept at night, and the father, who had ordered such return, was permitted the use of the car as he desired and possessed the right to enlist for any ordinary work the services of persons whenever needed.
Our views with reference to the matter of quantum are correctly stated in our original opinion.
For the above reasons, it is now ordered, adjudged and decreed that the judgment rendered by the trial court against the Maryland Casualty Company is amended by striking therefrom the award of $2,000 for medical, hospital and doctors' expenses, and, as amended, it is affirmed; and the judgment rendered against the Town of Lake Providence is reversed and set aside, and plaintiff's demands as against that defendant are rejected. The defendant Maryland Casualty Company shall pay the costs of both courts. *Page 527
TALIAFERRO, J., dissents and files written reasons therefor.