Ewing v. Colorado Farm Mut. Cas. Co., 17869

• Citation: 133 Colo. 447,296 P.2d 1040
• Decision Date: 07 May 1956
• Docket Number: No. 17869,17869
• Parties: Vern EWING and Gweneth Ewing, Plaintiffs in Error, v. COLORADO FARM MUTUAL CASUALTY CO., Defendant in Error.
• Court: Supreme Court of Colorado

Page 1040

296 P.2d 1040

133 Colo. 447

Vern EWING and Gweneth Ewing, Plaintiffs in Error, v. COLORADO FARM MUTUAL CASUALTY CO., Defendant in Error.

No. 17869.

Supreme Court of Colorado, En Banc.

May 7, 1956.

Paul C. Brown, Howard E. Erickson, Denver, for plaintiffs in error.

Wormwood, O'Dell & Wolvington, Denver, for defendant in error.

HOLLAND, Justice.

On September 11, 1953, plaintiffs, now plaintiffs in error, while riding in an automobile on the highway north of Boulder were seriously injured as the result of an accident caused by the negligence of one Clyde Coughlin, who was driving an automobile at a high rate of speed in the opposite direction and crashed headon into the car in which plaintiffs were riding. Plaintiffs filed suit on September 23, 1953, against Coughlin who was duly served with process but made no appearnce, either in person or by representative. On September 3, 1954, plaintiffs applied for and obtained judgments by default, one in favor of plaintiff Vern Ewing for $7,033.82, and the other for plaintiff Gweneth Ewing, his wife, for $7,500. On January 26, 1955, plaintiffs instituted the present action against defendant insurance company to recover the amount of the judgments. The automobile Coughlin was driving was owned by William Wolf, Jr., who carried a liability insurance policy with defendant, now defendant in error, insurance company.

Trial was had to the court on September 1, 1955. At the conclusion of plaintiffs' case defendant's counsel moved for dismissal of the complaint, which motion was granted and judgment entered in favor of defendant. Motion for new trial was filed and denied.

The grounds of the motion to dismiss were that plaintiffs failed to show that defendant insurance company had notice of the original suit in which the above mentioned judgments were taken against Coughlin; further, that plaintiffs failed to show that the judgment debtor Coughlin was driving and operating the automoble with the permission of Wolf, its owner and the insured in the policy. Briefly the facts as shown were that Wolf, the owner of the automobile, left the state for an extended trip and left the automobile with a Mrs. Preston, and the record discloses this conversation between Wolf and Mrs. Preston at the time:

'Q. What conversations were had concerning his 1952 Buick Riviera at the time he left? A. Well, he left all the papers with me and he asked me to take it down to Greeley and have the work done on it and have it finished by the time he got back.'

On the afternoon of the accident Mrs. Preston used the car to attend a party in Estes Park about nine miles from her home and Coughlin was a guest at the same party. Early in the evening Mrs. Preston asked Coughlin to drive her home and after arriving at her home she permitted Coughlin to take the car, telling him to return it the next day. Coughlin drove the car back to the party and was joined by another boy and the two started toward Boulder and on the way Coughlin negligently lost control of the automobile and collided with plaintiffs' car.

After the original suit was filed against Coughlin and he made no appearance, the attorney for plaintiff called the attorneys for Wolf's insurance company, defendant in error herein, and plaintiff claims that the attorneys for the insurance company denied liability under the policy because Coughlin was not operating the automobile with Wolf's permission. Counsel for the insurance company, called as a witness, says that he told plaintiff's attorney that he was going to, or had advised his client that there was no coverage.

It is evident that counsel for plaintiffs were in possession of the liability insurance policy here involved, and the record is unmistakably clear that the insurance company did not have any kind of notice of the original suit filed by plaintiff against Coughlin and knew nothing about it until this present action was instituted to recover the amount of the judgments. An attempt was made by plaintiffs' counsel to prove by the claims manager of the company that it had notice of the suit, but failed in this attempt.

Counsel for defendant company contend that it was incumbent upon plaintiffs to prove as a part of their case that the company had notice of, or at least, knowledge of, the original law suit. Being third party...