American Motorists Ins. Co. v. Biggs

• Decision Date: 16 April 1963
• Docket Number: No. 39610,39610
• Citation: 380 P.2d 950
• Parties: AMERICAN MOTORISTS INSURANCE COMPANY, Plaintiff in Error, v. Roy F. BIGGS and Myrtle Biggs, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 950

380 P.2d 950

1963 OK 87

AMERICAN MOTORISTS INSURANCE COMPANY, Plaintiff in Error, v. Roy F. BIGGS and Myrtle Biggs, Defendants in Error.

No. 39610.

Supreme Court of Oklahoma.

April 16, 1963.

Syllabus by the Court.

Contracts of insurance are to be liberally construed in favor of the object to be accomplished.

Appeal from the District Court of Tulsa County; Leslie Webb, Judge.

Garnishment proceedings for satisfaction of a judgment obtained against an insured of the garnishee. From adverse judgment and the overruling of its motion for a new trial, garnishee appeals. Affirmed.

Alfred B. Knight, Tulsa, for plaintiff in error.

Dale J. Briggs, Tulsa, for defendants in error.

WILLIAMS, Justice.

The question to be determined here is whether a policy of insurance covered an additional automobile purchased by the insured under circumstances hereinafter developed. We hold it did.

On August 19, 1958, a Ford automobile driven by Oris C. Hoffman, Jr., was involved in an accident. Subsequently defendants in error, hereinafter referred to as plaintiffs, obtained a judgment against Mr. Hoffman, Jr., for the death of their daughter in such accident. After execution had been issued against Mr. Hoffman, Jr., and returned unsatisfied, plaintiffs instituted garnishment against American Motorists Insurance Company, hereinafter referred to as garnishee, and from an adverse judgment the garnishee apppeals.

On June 20, 1958, garnishee, using information previously obtained by its agent, A. F. Phillips, had issued its family automobile insurance policy to Oris C. Hoffman, Sr. The coverage under this policy became effective August 2, 1958. Two Plymouths were listed in the policy as the total number of automobiles owned by Mr. Hoffman, Sr., on the effective date thereof. At the time of the issuance of such policy, Mr. Hoffman, Sr., had with another company, a similar policy which expired August 28, 1958. Such company has paid one-half of the judgment against Mr. Hoffman, Jr.

In the trial court the plaintiffs' evidence was to the effect that on July 29, 1958, Mr. Hoffman, Sr., purchased the Ford automobile herein involved, and took title in his name; that it was owned by him; that he made the down payment on the purchase price and borrowed the balance for which he executed a chattel mortgage thereon; that Mr. Hoffman, Jr., intended to take the automobile to California where he was stationed in the Navy if liability insurance could be obtained in his name; that Mr. Hoffman Sr. notified defendants policywriting agent, Mr. A. F. Phillips, of the newly acquired automobile and sought his assistance in obtaining liability coverage in his son's name; that Phillips advised that he couldn't write such coverage and suggested that the son make application with the assigned risk program; that on August 19, 1958, such application had been made but coverage had not been effected nor premium paid.

Garnishee's evidence was to the effect that Mr. Hoffman, Sr., did not discuss with A. F. Phillips the adding of the Ford to garnishee's policy; that Mr. Hoffman, Sr. in a signed statement admitted that the Ford was purchased for his son; that the son located such automobile on a used car lot; that the father drove it only one or not more than two or three times prior to the accident; that the sales manager for Phillips told the son that he would not have coverage for approximately ten days, until such was provided by the assigned risk program; that he advised the son not to drive the car until he had coverage.

For reversal, garnishee advances three propositions. The second such proposition is as follows: 'The determination that the 1953 Ford was owned by Mr. Hoffman, Sr., is contrary to the evidence and law.' In a statement signed by Mr. Hoffman, Sr., there appears the following language:

'My son, Oris C. Hoffman, Jr., * * * came on a furlough and he wanted to purchase an automobile. We decided that I would buy the car for him and put it in may name and obtain liability insurance for him. * * * At the time ot the accident * * * the 1953 Ford was titled in may name but it was purchased solely for my son, Oris, Jr. I had driven it one time (I believe). * * * The finance arrangements were made in my name, however my son was going to repay me for the automobile. After the liability policy was written, we were going to turn the title to the car over to Oris, Jr.'

Garnishee states that 'we must first draw the conclusion that Mr. Hoffman, Jr., did not have the credit or the purchasing power to finance the automobile. Thus, the father would have to secure the financing through the use of his credit.' There is no evidence that the son could not have secured financing for the purchase of the Ford. The testimony in this regard as developed on cross-examination of Mr. Hoffman, Sr. was as follows:

'Q: Now, when you bought this car, was there any finance company that would loan money to your son?

'A: I don't know whether there were or not--didn't try.

'Q: Don't you know that a finance company would not loan money to your boy who was in the Navy?'

'A: I didn't know about it.

'Q: Didn't you make inquiry?

'A: No, sir.'

Garnishee argues that '* * * the son filled out the application for the Assigned Risk Plan for insurance in his name; every conversation referred to in the entire testimony with reference to obtaining insurance coverage specifically dealt with the subject of Oris, Jr., obtaining insurance coverage.' The father and son both testified that it was necessary for the son to have liability insurance in his name in order to be permitted to take the automobile upon the naval base. It perhaps would have been noteworthy if in such application Mr. Hoffman, Jr., had stated that he was the owner of the automobile. However, although the completed application was given to Phillips for mailing, the garnishee did not offer it in evidence.

In the case of Downey v. Broesamle, 91 Okl. 81, 215 P. 1055, we said:

'The witnesses were before the court * * *, he heard their testimony, and had a better opportunity to determine the truthfulness of their statements than we could have under any circumstances * * *. The court resolved the matter in favor of the plaintiffs and his finding on the disputed question of fact will not be disturbed here.'

In the case of Sparks v. Midland Supply Company, Okl., 339 P.2d 1056, 1059, is the following language:

'It is a well-established rule of this court that where an action of legal cognizance is tried without a jury, judgment will be given same effect as verdict of properly instructed jury, and same will not be reversed if there is any evidence reasonably supporting the judgment. Continental Supply Co. v. Dickson Oil Co., 194 Okl. 660, 153 P.2d 1017.'

We have reviewed all the evidence in this case and we find that there was evidence reasonably supporting the determination that the Ford was owned by Mr. Hoffman, Sr.

Garnishee's first proposition is that 'The policy of insurance issued by American Motorists Insurance Company does not afford coverage for the 1953 Ford.' Garnishee contends that 'The only remote or possible contention that could be made would be under the theory of 'newly acquired vehicle' * * * The vehicle was not acquired during the policy period.'

Under the provision of the policy, 'Definitions', an "owned automobile' means a private passenger, farm, or utility automobile or trailer owned by the named...