Hipp v. Prudential Cas. & Sur. Co.

• Decision Date: 04 October 1932
• Docket Number: 7330
• Citation: 244 N.W. 346,60 S.D. 300
• Parties: BERNIE HIPP, Respondent, v. PRUDENTIAL CASUALTY & SURETY COMPANY OF ST. LOUIS, MISSOURI, Appellant.
• Court: South Dakota Supreme Court

60 S.D. 300

244 N.W. 346

BERNIE HIPP, Respondent,

v.

PRUDENTIAL CASUALTY & SURETY COMPANY OF ST. LOUIS, MISSOURI, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Davison County, SD Hon. Frank B. Smith, Judge #7330—Affirmed Miller & Shandorf, Mitchell, SD Attorneys for Appellant. Morgan & Eastman, Mitchell, SD Attorneys for Respondent. Opinion Filed Oct 4, 1932

POLLEY, Judge.

This is an appeal from a judgment for plaintiff in an action brought for the recovery of damages for injuries suffered by plaintiff in an automobile accident.

For some time prior to the 7th day of December, 1929, the Midway Transportation Company was operating a bus line over the public highway from Milbank through the City of Brookings to Mitchell. For some time prior to said 7th day of December, 1929, one John B. Moberg, as an employee of said company, was operating that portion of said bus line between Brookings and Mitchell, and on said date the Midway Transportation Company, by a contract in writing, sold to the said John B. Moberg that portion of said bus line and bus business, between Brookings and Mitchell, including one 1925 model, seven-passenger Packard automobile. Said Moberg took immediate possession of said bus line and equipment, and, without waiting for a permit from the Railroad Commission, continued to operate said bus line under the name of “Moberg Transportation Company.” He made immediate application to defendant for an indemnity policy as required by the provisions of chapter 224, Session Laws 1925, as amended by Laws 1929, c. 180. Such policy was issued on the 11th day of December, 1929, and contained the following express provision: “Term of policy from December 11, 1929 noon.” And an indorsement or rider attached thereto contains this provision: “This policy covers only the following described automobiles and this endorsement cancels all previous endorsements referring to the description of motor vehicles,” to-wit, one Packard 1925 model, seven passenger, sedan automobile.

On the 21st day of December, 1929, plaintiff desired passage over the said bus line, but there were more passengers than could be accommodated by the Packard automobile then being used by Moberg, and described in the said insurance policy, and, in order to accommodate all who desired passage, the said Moberg borrowed another car—a five-passenger Packard automobile. Plaintiff was given a seat in this car. The car was driven by one Ray Duff, an employee of Moberg. While traveling along the road, the car upset and the plaintiff was severely injured. For the injuries so suffered, she brought suit, and recovered judgment, against Moberg and Duff for damages in a material amount. The judgment was not paid, and plaintiff brought this action against the defendant on the said insurance policy for the recovery of the amount of the judgment against Moberg and Duff. Judgment was for plaintiff, and defendant appeals.

Appellant contends that it is not liable in the case for the reason, first, because the policy of indemnity was not in force at the time of the accident; and, second, that the said policy did not cover the automobile in which plaintiff was riding at the time of the accident.

The first reason is based on the fact that at the time of the accident Moberg was not a licensed motor carrier, but was operating his bus line illegally and without a license or permit, and that the policy had not been approved by the board of railroad commissioners. Whether Moberg was operating his bus line illegally is not material. It is a fact that at the time of the issuance of the policy he was actually engaged in the operation of his bus line and was a motor carrier under the definition found in section 2, c. 224, Session Laws, 1925, as amended by section 1, c. 181, Session Laws of 1929. There is no provision of law, nor condition contained in the policy, to the effect that the same shall not take effect until it has been approved by the board of railroad commissioners, and it was in force by express terms from and after noon of the 11th day of December, 1929.

As to the second ground urged by appellants: It is true that the terms of the policy, if standing alone, would probably limit the coverage thereof to the particular automobile described therein, but to the policy is attached and made a part thereof a second indorsement or rider which contains the following provision:

“It is agreed ... that all of the requirements of Section 15 and Section 16 of Chap. 22, Session Laws of 1925 and acts amendatory thereof, are hereby made a part of this policy of insurance, and that the rights of any person injured or suffering damages, either to person or property, as against the insurer shall be governed by the terms of said statutes, and that this policy of insurance shall cover that measure of protection to the public as contemplated by said statute herein referred to.”

The effect of this provision in the policy is to incorporate therein sections...