Barnes v. Pennsylvania Casualty Co.

• Decision Date: 27 January 1948
• Citation: 306 Ky. 435
• Parties: Barnes v. Pennsylvania Casualty Co.
• Court: United States State Supreme Court — District of Kentucky

306 Ky. 435

Barnes v. Pennsylvania Casualty Co.

Court of Appeals of Kentucky.

January 27, 1948.

1. Insurance. — Under automobile liability policy insuring only against "liability imposed upon insured by law," insurer was not liable for amount paid by insured in settlement of claim for damage done by insured truck in absence of proof that accident was caused by truck driver's negligence.

2. Evidence. — Testimony of shop foreman based upon long experience in repairing motor vehicles that fact that bus was damaged on the side, behind right front wheel, convinced him that

accident was caused by truck driver's negligence was merely the conclusion of witness and without probative value.

Appeal from Harlan Circuit Court.

Gus B. Bruner for appellant.

George E. Reams and Stanley B. Mayer for appellee.

Before J.S. Forester, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE SIMS.

Affirming.

Appellant, R.R. Barnes, sued appellee, Pennsylvania Casualty Company, hereinafter referred to as the Company, to recover $800 he paid the Cumberland Coach Line in settlement of a claim for damages done one of its busses when one of appellant's trucks collided with it. The theory of appellant's action is that the Company carried liability insurance on this truck and when he notified the Company of the accident and the latter denied liability on the ground that the truck was not covered by the policy, this authorized appellant to make a reasonable settlement of the claim for $800, for which he now seeks reimbursement from the Company.

At the conclusion of appellant's evidence the court directed a verdict for the Company on the ground that before appellant could recover from the Company the amount he paid in settlement of the claim, it was incumbent upon him to prove that the accident was caused by the negligence of the driver of his truck. This he failed to do, as no evidence was introduced on the question of how the accident occurred or whose negligence caused it.

The petition averred that the policy issued appellant by the Company on December 12, 1946, insured for one year his two Chevrolet trucks, 1941 models, against his negligence; that under section 7 of that policy any truck acquired in exchange of the two therein insured was automatically covered, and any additional trucks acquired by him were also automatically insured upon his notifying the Company of their acquisition. It was also alleged that appellant entered into an oral contract with the Company's agent to insure the truck in question. The petition further averred that the accident was caused by the negligence of appellant's driver and resulted in $1,420.35 damages being done to the bus; that when the Company was notified of the accident it denied liability upon the ground that the truck was not covered by its contract of insurance; whereupon, appellant made a fair and reasonable settlement of the claim with the bus company by paying it $800, in which sum the Company is indebted to appellant.

The answer admits insuring the two Chevrolet trucks, 1941 models, for one year from December 12, 1946, but contains a general denial of all other averments of the petition as amended. The Company pleaded affirmatively that on or about ...