Bruins v. Anderson, 9156
| Decision Date | 17 April 1951 |
| Docket Number | No. 9156,9156 |
| Citation | 73 S.D. 620,47 N.W.2d 493 |
| Parties | BRUINS v. ANDERSON et al. |
| Court | South Dakota Supreme Court |
Bailey, Voorhees, Woods & Fuller, Sioux Falls, for garnishee defendant and appellant.
Bogue & Masten, Canton, for defendant judgment creditor and respondent.
This action was brought by Albert Bruins to recover damages to his truck arising out of a collision with an automobile driven by defendant Clarence Anderson. Defendant counterclaimed for damages to his automobile and for personal injuries and recovered judgment for $1,675 and costs. The judgment being unsatisfied, defendant garnisheed the Maryland Casualty Company as insurer of the owner of the truck. The garnishment issue was tried to a jury which found for the judgment creditor and the garnishee defendant has appealed.
There was in force and effect at the time of the accident a policy of insurance issued by the Maryland Casualty Company to plaintiff whereby he was indemnified against loss for liability imposed upon him by law because of bodily injuries or injury to or destruction of property if caused by accident and arising out of the ownership or use of the truck described in the policy. The insurer also agreed to defend against any claim or suit instituted against the assured on account of such injuries.
The policy has attached thereto an endorsement reading as follows: .
The policy contained the following conditions:
'If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.
'Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by an authorized representative of the company.'
On the trial of the garnishment issue, appellant company asserted nonliability because of assured's failure to comply with the provisions of the policy. Appellant contends that the evidence shows that assured, after issuance of the policy and before the accident, made 'regular and frequent use' of the truck outside of the fifty-mile limit prescribed in the policy; that he failed to give to the appellant notice of the accident and to forward suit papers as stipulated; and that appellant had not waived these requirements or estopped itself from asserting a breach thereof.
If assured did not comply with the requirements of the policy, this would defeat recovery by respondent in the absence of waiver or estoppel. Appellant insurer has against the judgment creditor any defense it would have against the assured. Murphy v. Hopkins, 68 S.D. 494, 4 N.W.2d 801.
The assured had at the time another policy in the Providence Washington Insurance Company indemnifying him against loss resulting from collision. He procured this policy and the Maryland Casualty policy through E. W. Arth, a resident agent at Huron.
The record discloses that the accident occurred on August 1, 1948, about seven miles south of Sioux Falls, on U. S. Highway 77. Huron, Beadle County, South Dakota, was designated in the policy as the place where the truck would be 'principally garaged'. Plaintiff was more than fifty miles from such place at the time of the accident and testified that he made trips to Mitchell, a distance of fifty-three miles from Huron according to a highway map introduced in evidence by garnishee defendant, and also to Sioux Falls, which is a greater distance from Huron. He testified that such trips were 'not many', and that more than ninety per cent of his trucking for hire was in and around Huron.
It was the 'regular and frequent' use of the truck outside of the fifty-mile radius that was forbidden under the terms of the policy as distinguished from its casual or incidental use. Kindred v. Pacific Auto. Ins. Co., 10 Cal.2d 463, 75 P.2d 69; Bandy v. East & West Ins. Co., Mo.App., 163 S.W.2d 350. We cannot say that the proof was such that the court should have ruled that liability was avoided by use of the truck in violation of the endorsement.
Nor do we think that the court below should have directed a verdict for the insurer on the ground of failure to comply with the provisions of the policy requiring notice of the accident and forwarding to appellant of process or other papers relating to an action against the assured. Plaintiff testified that he went to see E. W. Arth, the agent at Huron, on the morning after the accident and gave him an account of what had occurred and that the agent assured him 'that he would take care of everything'. It is admitted that a written report of the accident was prepared by E. W. Arth and was received at the office of Virgil F. Stegner, another resident agent of the Maryland Casualty Company at Sioux Falls, South Dakota, and the state agent for the Providence Washington Insurance Company. The report contained no reference to the Maryland Casualty Company policy and referred only to the number of the policy issued by the Providence Washington Insurance Company. It had been the custom of the two companies to issue combined policies, including liability coverage with the Maryland Casualty Company and physical damage or collision coverage with the other company, but after January 1, 1948, separate policies were written. On such policies, combined loss reports were sometimes used. Stegner testified that upon receipt of the written notice he sent a copy to the Providence Washington...
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