Auto. Underwriters v. Camp, 27365.
| Decision Date | 29 May 1940 |
| Docket Number | No. 27365.,27365. |
| Citation | 217 Ind. 328,27 N.E.2d 370 |
| Parties | AUTOMOBILE UNDERWRITERS et al. v. CAMP et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Pike Circuit Court; Eldo W. Wood, Judge.
Action by Jeanette Camp, by her next friend, Lucian D. Camp, against Automobile Underwriters, Incorporated, as attorney in fact for subscribers at the State Automobile Insurance Association, and another, for the application of funds held by Automobile Underwriters, Incorporated, etc., to payment of a judgment which the plaintiff obtained against William Summers for injuries received by plaintiff while riding as a guest in William Summers' automobile. From the judgment, Automobile Underwriters, Incorporated, etc., and another, appeal. Transferred from the Appellate Court under Burns' Ann.St.1933, § 4-207, February 23, 1940.
Reversed with instruction.Fenton, Steers, Beasley & Klee, of Indianapolis, Padgett & Rogers, of Washington, and Ely, Corn & Nixon, of Petersburg, for appellants.
McDonald & McDonald, of Princeton, for appellees.
This was an action by appellee, Jeanette Camp, by her next friend, Lucian D. Camp, seeking to have funds held by the appellant, Automobile Underwriters, Inc., as attorney-in-fact for subscribers at the State Automobile Insurance Association, hereinafter called the Insurance Company, applied to the payment of a judgment which she obtained against the appellee, William Summers, for injuries received by her while riding in the automobile of said Summers as a guest. Her claim for the application of said funds is predicated on a policy of insurance issued to William Summers by the said Insurance Company, which policy was made an exhibit to her complaint.
Appellee Summers defaulted and the court found in favor of the plaintiff and ordered the Insurance Company to pay the former judgment out of the funds in its hands.
The decisive question presented by this appeal is whether or not the policy of insurance, issued by the Insurance Company to William Summers, provided protection to said Summers for injuries to occupants of his automobile. If it did not, then the appellee, Jeanette Camp, is not entitled to have any part of the fund held by the Insurance Company applied to the payment of her judgment, and this cause should be reversed. The ‘bone of contention’ in this case centers around the application for insurance, two petitions to transfer, and a ‘rider’ attached to the policy at the time the policy was delivered to said Summers.
The evidence is undisputed, and the record discloses the following facts:
On October 14, 1932, William Summers made application for insurance on his automobile, which application was introduced in evidence as defendant's exhibit ‘C’. In said application, under the heading ‘coverage wanted’ and ‘premium deposit’, appear the following questions and answers.
+----------------------------------------------+
¦Coverage¦Answer ¦ ¦
+--------+------------------------------+------¦
¦Wanted ¦‘Yes‘ or No‘ ¦ ¦
+--------+------------------------------+------¦
¦28. ¦Liability and Property ¦ ¦ ¦
+--------+-----------------------+------+------¦
¦ ¦Damage ¦yes...¦$10.00¦
+--------+-----------------------+------+------¦
¦28A. ¦Excess Liability Amount¦no....¦$.... ¦
+--------+-----------------------+------+------¦
¦29. ¦Occupancy Coverage ¦no....¦$.... ¦
+--------+-----------------------+------+------¦
¦30. ¦Additional Names, Num. ¦none. ¦$.... ¦
+--------+-----------------------+------+------¦
¦31. ¦Collision (Ded.$ No) ¦yes...¦$20.00¦
+--------+-----------------------+------+------¦
¦32. ¦Fire ¦no....¦$.... ¦
+--------+-----------------------+------+------¦
¦33. ¦Theft ¦no....¦$.... ¦
+--------+-----------------------+------+------¦
¦34. ¦Cyclone ¦no....¦$.... ¦
+--------+------------------------------+------¦
¦35. ¦Total Yearly Premium........ ¦ ¦
+--------+------------------------------+------¦
¦36. ¦Premium for 6 Months........ ¦ ¦
+----------------------------------------------+
On August 31, 1933, and on February 9, 1934, William Summers executed a written request to have said insurance transferred to another automobile. These written requests were introduced in evidence as defendant's ‘exhibit E’, and ‘F’, and appearing on the face of said exhibits are the following:
+----------------------------------------+
¦ ¦Answer the Following ¦To be ¦ ¦
+----+----------------------+------+-----¦
¦ ¦by ‘Yes‘ or ‘No‘ un- ¦Trans-¦To be¦
+----+----------------------+------+-----¦
¦ ¦der Heading ¦ferred¦Added¦
+----+----------------------+------+-----¦
¦28. ¦Liability and Property¦ ¦ ¦
+----+----------------------+------+-----¦
¦ ¦Damage ¦Yes ¦ ¦
+----+----------------------+------+-----¦
¦28A.¦Excess Liability ¦ ¦ ¦
+----+----------------------+------+-----¦
¦ ¦Amount ¦No ¦ ¦
+----+----------------------+------+-----¦
¦29. ¦Occupancy Coverage ¦No ¦ ¦
+----+----------------------+------+-----¦
¦30. ¦Additional Names, ¦ ¦ ¦
+----+----------------------+------+-----¦
¦ ¦Num ¦No ¦ ¦
+----+----------------------+------+-----¦
¦31. ¦Collision (Ded. $No) ¦Yes ¦ ¦
+----+----------------------+------+-----¦
¦32. ¦Fire ¦No ¦ ¦
+----+----------------------+------+-----¦
¦33. ¦Theft ¦No ¦ ¦
+----+----------------------+------+-----¦
¦34. ¦Cyclone ¦No ¦ ¦
+----------------------------------------+
The applications for transfer were granted, and the transfer was effected, and evidenced by the riders attached to the master sheet of the policy.
The policy is dated October 18, 1932, and was delivered a few days thereafter. At the time the policy here in question was delivered to William Summers, there were three riders pasted to the front page of the master sheet and to about the middle part thereof. The first rider contains a provision relating to financial responsibility, and was signed by the president and secretary of the company. The provisions of this rider have no material value in this case. This second rider is unsigned and it is the instrument around which much of the controversy in this case centers.
At the top of this rider is the following:
‘* * * in consideration of the premium payment this endorsement is attached to and forms part of this policy, subject to the limitations, exclusions and warranties contained therein.
‘Public Liability and Property Damage Insuring Coverage.’
Following this headline are six paragraphs printed in small type and lettered A, B, C, D, E, and F. Each paragraph covers about one inch of space, and together, they circumscribed the liability of the company as to public liability. This rider will be referred to herein as defendant's exhibit ‘A’.
The third rider contains eight paragraphs and has to do with property damage to the owner's car. This rider is unsigned, and contains a provision that it is attached to and forms a part of the policy. This rider will be referred to as defendant's exhibit ‘B’.
Paragraph G of the master sheet provides:
It is appellee's contention that defendant's exhibits ‘A’ and ‘B’ are no part of the contract, and were properly excluded as evidence. They seek to maintain their position on two theories; (1) Because paragraph G. of the master sheets provides that alterations, written endorsements, etc., must be signed by the company, and defendant's exhibits ‘A’ and ‘B’ were not executed according to provision G; (2) appellee made the policy, minus these exhibits, a part of her complaint by attaching it thereto as an exhibit, and the defendant did not deny the execution thereof under oath. They therefore argue that, because the defendant did not answer by a plea of non est factum, it is precluded from denying the execution of the policy as pleaded, and, consequently, there was no error in the admission of the policy, minus the two riders, defendant's exhibits ‘A’ and ‘B’, in evidence.
We will first consider the question whether or not the two riders, defendant's exhibits ‘A’ and ‘B’, constituted a part of the contract.
Couch, on Insurance, Vol. 1, § 159, states the general rule as follows: ‘As a general rule, a rider or slip attached to a policy or certificate of insurance is, prima facie at least, a part of the contract to the same extent, and with like effect, as if actually embodied therein, provided, of course, that it does not violate any statutory inhibition, and has been lawfully, and sufficiently attached, or attached and referred to therein, since riders or slips, in order to be considered as a part of the contract, must be made a part of the policy, either appearing in the body of the instrument, or by attachment, or proper reference thereto in the policy.’
American Jurisprudence, Vol. 12, § 245, says:
Vol. 17, Corpus Juris Secundum, Contracts, § 299, page 716, states the general...
To continue reading
Request your trial
-
Pratt v. Mutual Life Ins. Co. of New York
... ... recently cited with approval in Automobile Underwriters, ... Inc., v. Camp, 217 Ind. 328, 27 N.E.2d 370-373, 28 ... N.E.2d 68, ... ...
-
Garner v. State, 2--174A3
... ... See e.g. Automobile Underwriters v. Camp (1940), 217 Ind. 328, 27 N.E.2d 370; Michigan City v. Werner ... ...
-
Automobile Underwriters v. Camp
...27 N.E.2d 370 217 Ind. 328 AUTOMOBILE UNDERWRITERS et al. v. CAMP et al. No. 27365.Supreme Court of IndianaMay 29, 1940 ... [217 ... Ind. 331] ... [27 N.E.2d 371] ... Fenton, ... Steers, ... ...
-
Greene v. Hanover Ins. Co.
...(stating that unsigned endorsement is valid if attached to insurance policy and referenced therein); Automobile Underwriters v. Camp, 217 Ind. 328, 336-37, 27 N.E.2d 370, 373 (1940) (holding that signing of insurance policy effects a signing of all riders properly attached to policy at time......