Burglass v. Burglass

WESTERFIELD, Judge. This is an appeal from a judgment maintaining an exception of no cause of action. The petition alleges in substance that Joseph Burglass, the plaintiff, was injured on June 22, 1931, while a passenger in a Studebaker automobile driven by Milton Burglass, when the automobile overturned on the Public Highway near Elizabeth-town in the State of Kentucky; that the accident occurred through the fault of the driver of the automobile and that the General Accident, Fire & Life Assurance Company, Ltd., of Perth, Scotland, doing business in the City of New Orleans, had issued a liability policy covering the automobile in which Burglass was riding at the time of the accident. Milton Burglass and the insurance company were made defendants and the sum of $16,500 claimed as damages for physical injuries. In response to a prayer for oyer the defendant insurance company produced its policy from which it appeared that A. Burglass, the father of Joseph Burglass, the plaintiff, and Milton Burglass, the co-defendant, was the assured. According to the terms of the policy its coverage did not extend to the use of the car by anyone except “the name assured” unless it was used “with the permission of the named assured” or “with the permission of an adult member of the named assured’s household other than a chauffeur or domestic servant”. Of course, it is an indispensable condition to the liability of the insurance company that the accident should happen under circumstances mentioned in the policy. In other words, that it should be within the coverage. Plaintiff’s petition not having alleged that Milton Bur-glass, the operator of the automobile at the time of the accident, had obtained the permission of the assured, or of an adult member of his household, is defective, but plaintiff should have been permitted to amend, and, by supplemental petition, make the necessary allegations if such allegations were consistent with the facts. Plaintiff’s counsel informs us that when the exception was called for trial he requested the permission of the Court to file an amended and supplemental petition. This, the Court erroneously, we believe, refused to allow him to do, and, rendered judgment dismissing plaintiff’s suit. There was a time in this State when a petition which failed to disclose a cause of action could not be amended because as Judge Provosty stated in Tremont Lumber Company v. May, 1918, 143 La. 389, *276 78 So. 650, 652, “a petition which does not show a cause of action is, legally speaking, no petition, and hence cannot be amended.” But beginning with the case of James v. City of New Orleans, 151 La. 480, 91 So. 846 decided in 1922, the rule, with the exception of a brief period of recurrence to the former jurisprudence (West Orleans Beach Corporation v. Martinez, 180 La. 31, 156 So. 165), has uniformly permitted amendments even in the appellate court. Reeves v. Globe Indemnity Company of New York, 185 La. 42, 168 So. 488, overruling West Orleans Beach Corporation v. Martinez, supra; Unity Plan Finance Company v. Green, La.App. 148 So. 297; Iberville Trust & Savings Bank v. City Cafe, La.App. 150 So. 95; Harris v. Louisiana State Normal College, 18 La.App. 270, 134 So. 308, 138 So. 182; Self v. Great Atlantic & Pacific Tea Company, 178 La. 240, 151 So. 193. It may be and indeed it seems likely that Milton Burglass, the son of Abe Burglass, had obtained the permission of his father or mother to use the automobile. Perhaps Milton Burglass himself is an adult member of his father’s household, and, if so, it would seem that his use of the car would be covered by the policy, which requires the permission of an adult member of the assured’s household. Plaintiff’s counsel insisted in the court below and in this court that he was prepared to make the necessary allegations and he should have been given an opportunity to do so. It is also contended, as an additional reason for the maintenance of the exception of no cause of action, that Act No. 55 of 1930, which permits a direct action by an injured person against the insurance carrier, is void because it is violative of Section 16 of Article III of the Constitution of Louisiana of 1921 in that its text is broader than its title. However, as we have heretofore held, this Act does not violate the constitutional provision relied upon. Rossville Commercial Alcohol Corporation v. Dennis Sheen Transfer Company, Inc. et al., 18 La.App. 725, 138 So. 183. Nor is there anything, in our opinion, in Bougon v. Volunteers of America, La.App., 151 So. 797, 802, where we said that Act No. 55 of 1930, which amended Act No. 253 of 1918, “greatly increased the privilege of the injured person by conferring a right of direct action against the insurer without the necessity of establishing the bankruptcy of the insured and in advance of the securing of a judgment against it by joining the assured and the insurance company in the original action, or by suing the insured alone, or the insurer alone”, which conflicts with our holding in the Rossville case. The fact that the privilege, given the insured party by the original act of 1918 had been greatly increased, and his right of action against the insurer facilitated, does not require special mention in the title, since it is only necessary that the object of the law be indicated by the title. The object of Act No. 55 of 1930 is to permit a party injured by an automobile covered by an insurance policy to bring a direct action against the insurer and since that object is clearly stated in the title, the requirement of the constitutional provision relied upon has been met. In Jackson v. Hart, et al., 192 La. 1068, 190 So. 220, 221, the Supreme Court said: “Section 16, Article 3 of the Constitution of 1921 provides that: “ ‘Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object.’ “Under corresponding sections in preceding constitutions, it was required that the object of the law be ‘expressed’ in its title. The effect of the changing of the wording of the constitutional provision was to relax the previous requirement that the statute must ‘express’ its object, so ’now all that is required is that the title of the statute should be ‘indicative’ of its object. The constitutional provision must be construed broadly rather than narrowly with a view of effectuating, not of frustrating, the legislative purpose.” For the reasons assigned, the judgment appealed from is annulled, avoided' and reversed, and it is now ordered that this case be and it is remanded to the Civil District Court for the Parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed. Reversed and remanded.