Opinion
No. 9174.
March 22, 1960. Rehearing Denied April 28, 1960. Certiorari Granted June 29, 1960. Judgment Reversed December 12, 1960.
Action by a partnership for recovery of property damage sustained when a farm tractor and fertilizer machine owned by the partnership was struck in the rear by an automobile owned by defendant and insured by codefendant. Partnership's collision insurer was joined as a party plaintiff. The First Judicial District Court, Parish of Caddo, Henry F. Turner, J., entered judgment for defendants and an appeal was taken. The Court of Appeal, Hardy, J., held that where no repairs were ever undertaken to damaged fertilizer machine, and actual value of the machine as of the date of the accident was estimated at approximately $600, amount of recovery for damage to such machine should have been limited to its actual value on date of the accident, and not to the estimated cost of repair of the damage thereto.
Judgment set aside and reversed, and judgment entered for plaintiffs in accordance with opinion.
J.W. Jones, William E. Ranney, Shreveport, for appellants.
Simon Carroll, Shreveport, for appellees.
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 reference 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 bear 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.