Dunmire Co. v. Or. Mut. Fire Ins. Co.

• Decision Date: 01 July 1941
• Citation: 166 Or. 690,114 P.2d 1005
• Parties: DUNMIRE MOTOR CO. <I>v.</I> OREGON MUTUAL FIRE INSURANCE CO.
• Court: Oregon Supreme Court

166 Or. 690

114 P.2d 1005

DUNMIRE MOTOR CO.

v. OREGON MUTUAL FIRE INSURANCE CO.

Supreme Court of Oregon.

Argued April 30, 1941.

Affirmed July 1, 1941.

Pleading — Frivolous pleading

1. Generally a pleading that is but a repetition of a former one to which a demurrer has been sustained or which has been stricken out may be regarded as "frivolous" and on motion may be stricken by the court.

Pleading — Amended complaint

2. Where first cause of action in original complaint based on automatic coverage provision of automobile collision policy which provided that it did not apply if insured had other insurance on the additional automobile, was stricken because its allegations were inconsistent with second cause of action based on alleged new policy covering the additional automobile, amended complaint which contained only the first cause of action and wherein all allegations which negatived right to recover on automatic coverage provision were omitted, was not subject to motion to strike on ground that matter set forth therein had been stricken from original complaint.

Insurance — Automobiles — Sole owner

3. Insured who was in default in payments due under conditional sales contract covering insured automobile remained "sole and unconditional owner" of the automobile within provision of collision policy rendering the policy void if insured's interest should be other than sole and unconditional ownership, where dealer had not exercised option given to him, by the conditional sales contract, to retake the automobile.

Insurance — Automobiles — Sole owner

4. Where allegation of amended complaint that automobile collision policy was written, to expire on certain date and was at all times mentioned in petition in full force and effect, was admitted in insurer's answer, and insurer did not allege that insured was in default in any of his payments on conditional sales contract covering the insured automobile, trial court properly denied motion for involuntary nonsuit on ground that insured was in default on installments and therefore was not the "sole and unconditional owner" of automobile on date of collision, which would render the policy void.

Insurance — Automatic coverage

5. Automatic coverage provision of automobile collision policy, which provided that insurance afforded by policy should apply to any other automobile acquired by insured during term of policy,

was applicable to insured who owned only one automobile at time of issuance of policy, and covered collision in which another automobile subsequently acquired by the insured was involved.

Insurance — Automatic coverage

6. Automatic coverage provision of automobile collision policy was construable as intending to apply to any automobile acquired by insured, who owned one or more automobiles, if all automobiles then owned by insured were insured by the insurer, especially in view of condition of automatic coverage provision to effect that if all automobiles owned by insured were not covered by insurance in insurer, the automatic coverage would not apply except to an automobile replacing one insured by the insurer.

Insurance — Replacement — Restoration

7. "Replacement" in clause limiting insurer's liability on automobile collision policy to actual cost of replacement of damaged property means "restoration" of property to its condition prior to collision, and restoration may or may not be accomplished by repair or replacement of broken or damaged parts and there is not a complete restoration of property unless there has been no diminution of value after repair of the automobile.

Insurance — Repairs and replacement

8. In action on automobile collision policy which limited liability of insurer to cost of repair or replacement of automobile or parts thereof with others of like kind and quality, wherein there was evidence that automobile after being repaired was not worth as much as it was before the accident, trial court properly refused to limit recovery to cost of repairing the damaged automobile and permitted recovery of difference between reasonable value of automobile immediately before and immediately after accident.

Costs — Additional attorney's fees

9. Where insurer appealed from judgment for plaintiff in action on automobile collision policy and the judgment was affirmed, an additional attorney's fee of $200 for services rendered for plaintiff in the supreme court was reasonable and was allowed.

                  See 29 Am. Jur. 307
                  42 C.J., Motor Vehicles, § 359
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Clackamas County.

Action by the Dunmire Motor Company against the Oregon Mutual Fire Insurance Company on an automobile collision policy. From an adverse judgment, defendant appeals.

AFFIRMED.

R.C. Bradshaw, of Portland (Joseph, Veatch & Bradshaw, of Portland, on the brief), for appellant.

A.G. Beattie, of Oregon City (Schuebel & Beattie, of Oregon City, on the brief), for respondent.

BAILEY, J.

This action was brought by Dunmire Motor Co. as assignee to recover from Oregon Mutual Fire Insurance Company for damage to an automobile caused by a collision. From a judgment in favor of the plaintiff the defendant appeals.

In April, 1938, the defendant issued to William Allen White, plaintiff's assignor, a policy of insurance against collision or upset, on a Hupmobile car which was being purchased by White from Buxton Motor Company on a contract of conditional sale. This policy was for a term of one year. The damage for which recovery is sought in this case was caused to a Packard automobile being purchased by White from the plaintiff on a contract of conditional sale.

The plaintiff bases its right of recovery against the defendant on the following provisions contained in the policy of insurance issued on the Hupmobile car:

"Automatic Coverage

"A. Such insurance as is afforded by this policy to each and every automobile covered thereunder and owned by the assured shall also apply during the policy period to any other automobile (excluding dealer's automobiles, automobiles insured under a finance plan and automobiles insured at a fleet rate), ownership of which is acquired by the assured as of the date of delivery to him during the policy period, subject to all the terms of the policy and subject also to the following conditions: (1) If the company covers all automobiles owned by the assured at the date of such delivery, the insurance shall be applicable to such other automobile if used for pleasure purposes or in the disclosed business of the assured; * * * and (5) This agreement shall not apply (a) with respect to any loss against which the assured has other insurance nor unless (b) the assured notifies the company within ten days following the date of delivery of such other automobile and (c) pays any additional premium required because of the application of this insurance to such other automobile. * * *"

White retained the Hupmobile until sometime in November, 1938, when it was repossessed by Buxton Motor Company.

On October 18, 1938, White purchased the Packard automobile above mentioned. On that day he notified the local agents of the defendant insurance company of his purchase and requested that they issue to him a policy of insurance on the Packard against collision or upset. The Packard automobile was involved in a collision on October 27, 1938, which caused extensive damage to it. White immediately, and within ten days of the delivery of the Packard to him, notified the insurance company of the damage and filed proof of claim with the company's agents. In addition, he offered to pay whatever additional premium might be required because of the automatic coverage of the Packard car. The company's agents made an investigation of the damage to the automobile, and thereafter the company denied all liability.

In the original complaint herein the plaintiff set forth its claim in two separate causes of action for the same recovery. The first cause of action was based on the automatic coverage provision in the policy above described. The second cause was based on the theory that White's notification to the defendant on the day of his purchase of the Packard and the assent of the defendant's agents to his request that the Packard be protected by insurance against collision or upset amounted to a contract of insurance.

The defendant moved to strike the first cause of action, on the ground that the allegations therein "are inconsistent with and repugnant to the allegations of the plaintiff's second cause of action, and that the allegations of...