Conn v. Walling

• Decision Date: 05 March 1960
• Docket Number: No. 41603,41603
• Citation: 349 P.2d 925,186 Kan. 242
• Parties: Clifton M. CONN, Sr., and Doris Lou Conn, Parents and Next of Kin of Clifton M. Conn, Jr., an Infant, Appellants, v. John T. WALLING, Defendant; The Alliance Mutual Casualty Company, Garnishee, Appellee.
• Court: Kansas Supreme Court

Page 925

349 P.2d 925

186 Kan. 242

Clifton M. CONN, Sr., and Doris Lou Conn, Parents and Next

of Kin of Clifton M. Conn, Jr., an Infant, Appellants, v. John T. WALLING, Defendant;

The Alliance Mutual Casualty Company, Garnishee, Appellee.

No. 41603.

Supreme Court of Kansas.

March 5, 1960.

Rehearing Denied April 13, 1960.

Syllabus by the Court

1. Where the terms of an insurance policy are open to different constructions, the one most favorable to the insured must prevail.

2. It is a well-established rule of law that where a provision of an insurance policy is susceptible of different constructions, it is to be construed most favorably to the insured, and if an insurer intends to restrict its coverage it should use language clearly stating its purpose.

3. If provisions in an insurance policy result in ambiguity, inconsistency or uncertainty, forfeiture must be denied, as under those circumstances the provisions of the policy must be construed in favor of the insured.

James W. Sargent, Jr., of Wichita, argued the cause, and W. D. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, Robert G. Braden, J. Francis Hesse and Stanley E. Wisdom, all of Wichita, were with him on the briefs for appellants.

Robert C. Foulston, of Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Malcom Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Anthony T. Dealy, Gerald Sawatzky, Donald L. Cordes and Robert L. Howard, all of Wichita, were with him on the briefs for appellee.

WERTZ, Justice.

This was a proceeding in garnishment. Plaintiffs (appellants) recovered judgment against John T. Walling, defendant, for damages sustained in an automobile accident, and caused a summons in garnishment to be issued against the Alliance Mutual Casualty Company, garnishee (appellee), who answered denying it owed Walling anything. Plaintiffs elected to take issue on the answer; the trial court heard the parties, with the exception of Walling, who made no appearance, on the question of whether the garnishee was indebted to Walling, and entered judgment in favor of the garnishee, from which plaintiffs appeal.

For all purposes, the facts in this case are not in dispute. The question is--did the trial court properly construe the policy as amended and apply the law to the undisputed facts? These are as follows: On June 3, 1954, the garnishee insurance company issued John T. Walling its national standard automobile policy covering his 1954 Dodge. This policy expired December 3--six months later. Coverage IA thereof provided that the insurance company would pay, on behalf of insured, all sums which the insured should become legally obligated to pay as damages because of bodily injury sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile. Coverage IV(a)(4) stated:

'Newly Acquired Automobile--an automobile, ownership of which is acquired by the named insured who is the owner of the described automobile, if the named insured notifies the company within thirty days following the date of its delivery to him, and if * * * it replaces an automobile described in this policy * * *; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other valid and collectible insurance. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.'

The record failed to disclose that Walling had any other valid and collectible public liability insurance, and it showed that the premium for public liability and property damage would be the same, regardless of the make or model of the automobile. Coverage V provided:

'Use of Other Automobiles: If the named insured is an individual who owns the automobile classified as 'pleasure and business' * * *, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to said automobile applies with respect to any other automobile, * * *.'

At the time of the collision on May 30, 1955, which resulted in the death of plaintiffs' son and judgment therefor against Walling, he was driving an automobile belonging to another person.

On September 17, 1954, Walling sold the Dodge described in the policy and on November 20 purchased a 1954 Buick, but did not notify the garnishee insurance company of the change. On December 3, the agent of the garnishee company extended the policy for a period of six months; i. e., to June 3, 1955. He did not ask Walling if he still owned the Dodge, nor did Walling notify him of the sale thereof and the purchase of the Buick. The automobile renewal certificate was not signed by Walling and did not describe the insured car. It did, however, contain the following provision:

'It is agreed that if, subsequent to the issuance of the policy which is being renewed by this certificate, the Company's automobile policies affording similar insurance are revised so as to extend or broaden such insurance without additional charge; such extended or broadened insurance shall inure to the benefit of the insured hereunder from the date such extended or broadened coverage is made effective by the Company.' [Emphasis supplied.]

April 29, 1955, the garnishee insurance company notified the commissioner of insurance, by letter, that it was broadening its coverage retroactively to include policies in effect on and after April 1, 1955. This letter in pertinent part reads:

'Re: Interpretation New Automobile Policy--April 1, 1955

'The rule changes which are the result of the Fifth Revision of the Standard Provisions of the Basic Automobile Liability Policy are applicable to all new and renewal policies written on or after April 1, 1955 by the Alliance...