Central Nat. Insurance Co. of Omaha v. Sisneros

• Decision Date: 19 June 1959
• Docket Number: Civ. No. 4058.
• Citation: 173 F. Supp. 757
• Parties: CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, Plaintiff, v. Jose F. SISNEROS, Maclovio Rivera, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

173 F. Supp. 757

CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, Plaintiff, v. Jose F. SISNEROS, Maclovio Rivera, et al., Defendants.

Civ. No. 4058.

United States District Court D. New Mexico.

June 19, 1959.

William W. Gilbert and Edwin E. Piper, Jr., of Gilbert, White & Gilbert, Santa Fe, N. M., for plaintiff.

P. R. Melendez, of Chacon & Melendez, Espanola, N. M., and David Chavez, Jr., Santa Fe, N. M., for defendants.

KERR, District Judge (assigned).

This is an action for declaratory judgment brought under the provisions of Title 28, Section 2201, U.S.C.A. The plaintiff is a Nebraska corporation. The defendants are citizens of the states of New Mexico and Colorado and the amount in controversy, exclusive of interest and costs, exceeds the sum of ten thousand dollars.

On July 25, 1958, the Central National Insurance Company, hereinafter referred to as "Insurer" issued an automobile liability insurance policy to defendant Jose F. Sisneros, effective July 25, 1958, for a period of two years. The insured vehicle was described as a 1951 Ford ¾ ton truck.

On August 2, 1958, while the policy was in force, Sisneros was driving a 1957 Ford automobile owned by Lea G. Duran and was involved in a serious accident resulting in death to some and serious injuries to other persons. One action has been instituted against Sisneros in a New Mexico state court with a possibility of other actions to follow.

The Insurer has denied liability under the policy. The purpose of this suit is to determine whether the Insurer is legally obligated under the terms of the policy to defend the damage suit now pending, and others where and when brought, and to pay any judgment which may be obtained against Sisneros within the limits of the policy.

The insuring agreement IV(3) of the policy is as follows:

"Temporary Substitute Automobile. —an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;" (Emphasis supplied.)

In order to determine whether Sisneros was covered by the provisions of Agreement IV(3) in respect to a temporary substitute automobile it is necessary to set out the circumstances which led him to make use of Mrs. Duran's car on the date of the accident.

Sisneros was called as an adverse witness and testified that he was acquainted with Mrs. Duran and that he had known her for about fifteen years; that his wife and Mrs. Duran's husband are sister and brother; that at times he has done some work for Mrs. Duran on her farm; that approximately three weeks before the accident he was working at a saw mill twelve miles from Fort Garland, Colorado; that he had been the owner of the Ford pickup for five or six years and that he purchased it second hand; that it was in good working condition when he purchased it; that he had the truck with him when working at the saw mill and that it was not running very good at the time; that he used the truck to go to and from work while working at the mill; that he quit his job at the mill during the last of July and drove to Alamosa, Colorado; that he met a man in Alamosa, who asked him what he was doing and he stated he was looking for a job and Sisneros was advised that a truck driver was needed at the Pearlite mine near No Agua, New Mexico; this conversation took place the last week of July:

"Q. After talking to him, where did you go? A. I rode around about one or two streets there and I was on the way to Antonito and finally the pickup stopped.

"Q. Why did you want to go Antonito, Mr. Sisneros? A. Because it was near for me to go to work up there.

"Q. All right, now you said you started out of Alamosa to go to Antonito, what happened? A. My truck stopped and I couldn't start it.

"Q. Why did it stop? Did you bring it to a stop? A. No, it won't work.

"Q. Was that on Main Street? A. No, it wasn't on Main Street.

"Q. Was it on a side street? A. On a side street.

"Q. Why did it stop, do you know? A. Well, it stopped there and I couldn't start it again.

"Q. You say it had been missing up at Fort Garland? A. Yes.

"Q. Now you say that you were just driving along the street and all of a sudden it quit? A. Yes, sir.

"Q. Where did you put it? A. Put it in the street.

"Q. How did you put it there? A. I just pushed it. I put it in gear and I pressed the starter button and it rolled down to where I parked it.

"Q. Your car stopped and you parked it there in the parking place on the street. Then what did you do? A. Well, that thing what I was going to do and I found that job, and I learned that the woman lived there, the lady, and I went up there to see if I could borrow her car.

"Q. What did you say to her? A. I told her that if I could have her car to go to work and back for a week.

"Q. What did she say? A. She said it was all right.

"Q. What kind of car does she have? A. A 1957 Ford.

"Q. And then what did you do that day when she said you could borrow her car? A. And I asked her to board me for a week until I got my truck fixed." The evidence discloses that Sisneros drove the 1957 Ford commencing on Monday through Saturday of the same week. That the mine where he was employed was approximately forty miles from Alamosa.

The above evidence stands uncontradicted except as to two or three answers which were given by Sisneros to the Insurance Adjustor, which will be referred to later. Mrs. Duran testified that she was a school teacher by profession and related to Sisneros by marriage.

"Q. Will you proceed and tell the court just exactly what happened when you saw Mr. Sisneros, who came there to your place the latter part of July, 1958, when you say that you and your two children were living there and you were attending this Adams State Teachers College? A. I don't remember if it was on Sunday, he came and asked me if he could use my car for a week and I said it was all right. He said he would fix his pickup.

"Q. Did he tell you why he wanted to borrow your car? A. He said his pickup wasn't running.

"Q. Now, did he say anything to you with reference to boarding him or staying there at the place? A. Yes, he asked me if I would board him. He thought he would fix his pickup within a week and asked me to board him for a week.

"Q. Did he tell you where he was going to work, where he had gotten a job? A. Yes.

"Q. What did he say? A. He told me he had gotten a job at the pearlite somewhere near the Tres Piedras, somewhere in there.

"Q. And about what time would he leave in the morning, the best you can recall? A. I don't know exactly, maybe around five or six, I don't know."

On August 18, 1958, approximately two weeks following the accident, an Insurance Adjustor for the Insurer took Sisneros before a notary public, placed him under oath and interrogated him with respect to the circumstances by which he had borrowed the car.

The following questions were asked and answers given:

"Q. Well, now, were you staying at the same address as Leah Duran? A. Yes, sir.

"Q. For how long? A. Oh, I had been staying there for maybe a year. You mean here in Alamosa?

"Q. Well, all together, Alamosa and Antonito. A. Yes, about a year.

"Q. At the same address? A. Yes.

"Q. Now you had her permission to use this 1957 Ford automobile which she owned? A. Yes, sir.

"Q. Any time at your discretion? A. Yes, sir.

"Q. Now prior to the date of the accident, which is August the 2nd, is it correct you had been driving this car daily for a period of one week? A. Yes, sir.

"Q. And prior to that time, for approximately a year, as I said, at your discretion? A. Yes, sir."

It will be observed that Mrs. Duran was a teacher in Dulce, New Mexico, and did not come to Alamosa until June 1958 to attend summer school. She further testified that Sisneros had driven her car approximately twice during the previous year. Obviously the questions and answers given in Sisneros' statement were inconsistent with other established facts. The Court observed that Sisneros has a very poor understanding of the English language and an interpreter was used in the trial of this case and was called upon several times to interpret the questions into Spanish before he understood their meaning. Since no interpreter was present or used at the time the statement was taken from Sisneros I have grave doubts as to whether or not he had a full and complete understanding of the meaning of the questions...