Everly v. Creech
| Decision Date | 01 March 1956 |
| Citation | 139 Cal.App.2d 651,294 P.2d 109 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Paul C. EVERLY, Plaintiff and Appellant, v. Harry B. CREECH, Great American Indemnity Company, a corporation, et al., Defendants and Respondents. GREAT AMERICAN INDEMNITY COMPANY, a corporation, Cross-Complainant and Respondent, v. Paul C. EVERLY, Harry B. Creech, Normac, Inc., a corporation, Standard Accident Insurance Company, a corporation, et al., Cross-Defendants and Appellants. Civ. 4954. |
Mack, Bianco & King, Bakersfield, for appellants.
Borton, Petrini, Conron & Brown, Bakersfield, for respondent.
This is an action to determine a question of liability under the 'newly acquired automobile' provision of an insurance policy issued by Great American Indemnity Company and covering a 1949 Hudson owned by the plaintiff Everly. The policy was dated July 10, 1949, and contained the usual provision for an additional coverage which, so far as material here, reads:
Everly was employed by Normac, Inc., as a cement finisher foreman and was living at Ridgecrest. He worked in that vicinity, most of his work being at a Naval Base some five miles away. As a part of his work he took some of his men to the job and while on the base, where a number of jobs were in progress, he took them back and forth between the various jobs as they were needed. He had asked his employer for a pickup truck for this purpose but none was available and in lieu thereof it was agreed that he would use his own car and the employer would pay for the gasoline, oil and expense of running it. When he acquired the Hudson on July 10, he used it for about a month and then stopped using it because of the abuse it was taking from the dirty clothes of the men and from getting stuck in the sand. About the middle of August he started 'really using' a 1936 Ford which had belonged to Mrs. Gilliland, a widow, with whom Everly was going.
On September 27, 1949, Harry B. Creech was injured in a collision between an automobile operated by him and this 1936 Ford, which was being operated by Everly. Creech brought an action for damages against Everly, Mrs. Gilliland and Normac, Inc., and Everly filed a verified cross-complaint alleging that this Ford was worth $350 at the time of the accident. While that action was pending Everly brought this action for declaratory relief against the Great American Indemnity Company. The complaint alleged, among other things, that Everly had purchased and acquired this 1936 Ford within thirty days of said accident; that Great American had refused to accept coverage, under the above quoted provision of the Hudson policy, for this Ford; and that a controversy had ariser between the parties as to the interpretation of the policy and as to whether the Ford was thus covered at the time of this accident.
Great American filed an answer admitting the issuance of the policy but alleging that it covered only the Hudson. As affirmative defenses it was alleged that the insured had other insurance; that he did not notify the company within thirty days following the delivery of the Ford to him; and that he had violated the provisions of the policy by using the Ford as a work or business car. Great American also filed a cross-complaint for declaratory relief against Everly, Creech, Normac, Inc., and Standard Accident Insurance Company, alleging that at the time of the accident Everly was acting within the scope and course of his employment by Normac, Inc., and was using this Ford on behalf of Normac; that Normac was insured with Standard; and that Everly had available to him the insurance issued by Standard. The answer to this cross-complaint denied that Everly was acting in the scope of his employment, or that this insurance was available to him.
So far as material here, the court found that at the time of the accident the Great American policy covered the Hudson, with a private passenger car classification, and the policy issued by Standard to Normac, Inc. was also in force, copies of both policies being attached to the findings; that Everly acquired possession of the 1936 Ford prior to August 25, 1949, and more than thirty days before September 27, 1949; that he was 'in possession with full use of and exercise of dominion over said vehicle at all times between' the date of acquiring possession and September 27; that he had the possession and use of said vehicle for a period in excess of thirty days before September 27; that he did not notify Great American of the delivery of this Ford to him within thirty days following the date of its delivery to him; that this Ford did not replace the Hudson; that Great American did not insure all automobiles owned by Everly during the period in question; that Everly did not pay any additional premium by reason of acquisition of the ownership of the said 1936 Ford, or by reason of the delivery of it to him; that legal title to said 1936 Ford was acquired by Everly on September 24, 1949; that the 1936 Ford was used by Everly in his occupation, and used exclusively for business purposes; that the 1936 Ford was not at any time used by Everly as a substitute for the Hudson while that car was being repaired; that all the allegations of the complaint not found to be true are untrue; and that it is not true that the Great American policy also covered the Ford car. The court also found that it was unnecessary to determine the issues with respect to Everly's employment by Normac and with respect to coverage by the Standard policy, and that these issues should be tried in the other action. Judgment was entered accordingly, and Everly, Normac, Inc., and Standard Accident Insurance Company have appealed.
The appellants contend that the finding that Great American did not insure all the automobiles owned by Everly during this period, and the finding that Everly acquired 'dominion' over the Ford more than thirty days before the accident are not supported by the evidence; and that the findings are insufficient to support the judgment because the court failed to find as to the date on which Everly acquired ownership of the Ford. It is argued that the real issue in this case is as to when a sale of the Ford from Mrs. Gilliland to Everly took place; that the time of delivery is not controlling; that delivery is only important when a car is delivered with the intent that the insured become the woner; that Everly did not acquire ownership of the Ford until September 24, when the pink slip was delivered to him; and that he was automatically covered by the Great American policy for a period of thirty days after September 24, regardless of notice before the accident, under the holding of this court in Birch v. Harbor Insurance Co., 126 Cal.App.2d 714, 272 P.2d 784.
There was evidence that Mrs. Gilliland lived in a trailer at Ridgecrest. Before he acquired his Hudson, Everly had driven the Ford around Ridgecrest a time or two but had not used it for any other purpose. Prior to August 1, he had paid several repair bills on the Ford for which Mrs. Gilliland reimbursed him. Early in August Mrs. Gilliland went to Texas by train, and Everly moved into her trailer. He did some work on the car in the evenings and then began to use it. Thereafter, he had it repaired several times at a garage, paying the bills himself.
Everly testified that it was the middle of August 'when I started really using the Ford' and that he used his Hudson through July and up to August 'because the Ford was gone at that time'; that...
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