Automobile Club Ins. Co. v. Hoffert

• Court: North Dakota Supreme Court
• Writing for the Court: STRUTZ
• Citation: Automobile Club Ins. Co. v. Hoffert, 195 N.W.2d 542 (N.D. 1972)
• Decision Date: 18 February 1972
• Docket Number: No. 8739,8739
• Parties: AUTOMOBILE CLUB INSURANCE COMPANY, a Foreign Corporation, Plaintiff and Appellant, v. LeRoy HOFFERT et al., Defendants and Respondents. Civ.

Page 542

195 N.W.2d 542

AUTOMOBILE CLUB INSURANCE COMPANY, a Foreign Corporation Plaintiff and Appellant, v. LeRoy HOFFERT et al., Defendants and Respondents.

Civ. No. 8739.

Supreme Court of North Dakota.

Feb. 18, 1972.

Rehearing Denied March 29, 1972.

Syllabus by the Court

1. Where the effective date of the repeal of our de novo statute was July 1, 1971, and the appellant served and filed its notice of appeal and undertaking for costs on June 2, 1971, the demand for trial de novo was timely made.

2. In reviewing the facts on demand for trial de novo, this court will give appreciable weight to the findings of the trial court, but will not permit that principle to relieve the court of the necessity of finding anew questions of fact in the entire case.

3. Where the insured was driving down the highway at speeds of over 100 miles an hour, with his left wheels on the dirt shoulder of the road, when he suddenly saw ahead of him an approach from the highway to an adjoining field and turned to the right to avoid such approach, the resulting collision with a vehicle he was passing was an accident and not a willful and deliberate act of the insured to injure the parties in such other vehicle which he caused to be wrecked by his maneuver.

4. Where the insured was held in jail from the time of the accident on September 14, 1969, and on September 17 he was transferred to the State Hospital, from which hospital, during the first part of November, he mailed a notice of such accident to the insurance company, the insured gave notice of loss 'as soon as practicable,' as required by the policy. This is true especially where the insurer has not shown that it was in any way prejudiced by failure of the insured to give earlier notice.

5. For reasons stated in the opinion, the judgment of the trial court is affirmed.

Duffy & Haugland, Devils Lake, for plaintiff and appellant.

Ackre & Britton, Cando, for defendant and respondent Hoffert.

William J. Murray, Grand Forks, for defendants and respondents Benson; Brink, Sobolik & Severson, Hallock, Minn., of counsel.

STRUTZ, Chief Justice.

This is an appeal from a declaratory judgment entered in favor of the defendants and against the plaintiff Automobile Club Insurance Company on the 24th day of May, 1971. The action was brought by the plaintiff insurance company to determine the rights and liabilities of the parties under an insurance policy which had been issued by the plaintiff to the defendant Hoffert. The defendants Benson are joined as parties defendant because of a claim which they have asserted against the defendant Hoffert, under facts hereinafter set forth, which claim the plaintiff might be called upon to pay under the policy.

The case was tried to the court without a jury. The trial court found for the defendants. Judgment was entered accordingly and this appeal followed, the plaintiff demanding a trial de novo in this court.

The material facts in the case, upon which the trial court found for the defendants, are:

--The plaintiff issued a policy of automobile insurance to the defendant Hoffert on or about July 17, 1969. This policy was for a term of one year and contained certain terms, conditions, limitations, and amounts for which the plaintiff would be liable, as set forth therein. One provision was an exclusionary clause stating that the policy would not apply 'to bodily injury or property damage caused intentionally by or at the direction of the insured.'

--On the 14th day of September, 1969, after the policy had been in effect for approximately two months, the defendant Hoffert was operating the automobile described in the policy on a public highway when it was involved in an accident with an automobile operated by the defendant Maurice Benson, in which car the defendant Geraldine Benson was a passenger. As a result of such accident, Mrs. Benson suffered very serious personal injuries, Mr. Benson suffered less serious injuries, and the Benson car was demolished.

--The Bensons were acquainted with the defendant Hoffert, who was married to one of their daughters. Serious marital differences had arisen between the Hofferts and they had separated. Because of this situation, the relationship between the defendant Hoffert and the defendants Benson had become strained.

--On the day of the accident, the Bensons had been in Devils Lake visiting another daughter. Shortly after leaving Devils Lake, while driving north on Highway No. 20, they met the defendant Hoffert driving south toward Devils Lake. Hoffert continued driving toward Devils Lake for the purpose, as he testified, of getting some gasoline. The Bensons, however, feeling that they should warn Hoffert's wife that he was heading that way, stopped at Webster for the purpose of telephoning her. While they were in Webster and parked on a side street, they saw Hoffert's automobile pass through town, traveling away from Devils Lake, at a high rate of speed. Shortly thereafter, they continued homeward toward Argyle, Minnesota.

--At the junction of Highways No. 20 and 17, the Bensons turned toward the east on Highway No. 17. After traveling some distance, they again met the defendant Hoffert coming from the east. After he had passed them, he turned around and began following their automobile. He finally managed to pass their vehicle after they had slowed down at the junction of Highway No. 17 with the highway going into Edmore. After Hoffert had passed their automobile, he stopped and began backing toward the Bensons' car. The Bensons also stopped. Hoffert then got out of his car and approached the Benson car on foot. At this juncture, Mr. Benson produced a pistol and told Hoffert to return to his automobile and leave. Hoffert went back to his car, reached through a window, and picked up a .22-caliber rifle from the back seat which he then aimed at the Bensons. His first shot went through the Bensons' rear left window. On the firing of the shot, Benson immediately took off, Hoffert firing two more shots, one of which hit the Benson automobile while the third shot missed. He again began following the Bensons and tried twice, unsuccessfully, to pass the Benson automobile. Mr. Benson testified that during one of Hoffert's unsuccessful attempts to pass, as the two cars were going down the highway at a high rate of speed, parallel to one another, Hoffert aimed his rifle out of the front right window at the Bensons but did not fire. After the second unsuccessful attempt to pass was made by Hoffert, Mr. Benson fired his pistol at the Hoffert car, but he missed.

--Hoffert then tried a third time to pass the Benson car. According to the record, he was at that time traveling parallel to and slightly ahead of the Benson automobile at a speed of approximately 110 miles an hour, with the left wheels of his car on the left shoulder of the highway. While thus speeding down the highway, Hoffert noticed a field crossing ahead and, in order to avoid hitting the crossing, he turned to his right. As he did so, his rear right bumper came in contact with the left front bumper of the Benson car. The bumpers hooked momentarily, and the impact was sufficient to cause Mr. Benson to lose control of his car. It swerved off the highway to the left side and struck a highway sign, resulting in the total demolishment of the Benson vehicle and causing very serious personal injuries to Mrs. Benson, which injuries necessitated months of hospitalization.

--On about April 22, 1970, the Bensons started an action against Hoffert for the personal injuries and damage to their car suffered in the accident. Shortly thereafter, the plaintiff insurance company, which had issued the policy on Hoffert's automobile, commenced this lawsuit for declaratory judgment, asserting that the acts which caused such damage and injury to the Bensons were deliberate and intentional on the part of the defendant Hoffert, and that the policy which had been issued to him did not cover the accident in question because the policy specifically provided that it would not apply to bodily injury and property damage caused intentionally by the insured.

On the above facts, the trial court held that although the acts of the defendant Hoffert were reckless and wanton, they were not intentional so as to permit the insurance company to deny coverage. The plaintiff insurance...