Hugh Breeding Transp., Inc. v. Am. Fid. & Cas. Co.

• Decision Date: 21 January 1936
• Docket Number: Case Number: 25859
• Citation: Hugh Breeding Transp., Inc. v. Am. Fid. & Cas. Co., 1936 OK 54, 54 P.2d 156, 175 Okla. 508 (Okla. 1936)
• Parties: HUGH BREEDING TRANSPORT, Inc. v. AMERICAN FIDELITY & CASUALTY CO.
• Court: Oklahoma Supreme Court

1936 OK 54

54 P.2d 156

175 Okla. 508

HUGH BREEDING TRANSPORT, Inc. v. AMERICAN FIDELITY & CASUALTY CO.

Case Number: 25859

Supreme Court of Oklahoma

Decided: January 21, 1936

Syllabus

¶0 1. TRIAL - Demurrer to Plaintiff's Evidence - Consideration.

On a demurrer to the sufficiency of evidence, the question presented to the trial court is, admitting the truth of all the evidence of the plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom, and eliminating all opposing inferences, whether there is any competent evidence tending to support the plaintiff's petition.

2. INSURANCE - Automobile Accident Policy - Liability Dependent on Coverage of Identical Car Operated at Time of Accident.

Where suit is brought to recover expenses of litigation claimed to be covered by insurance policy, the car being operated at the time of the accident must be covered by the policy in order to recover.

3. SAME - Necessity of Giving Insurer Notice of Accident.

Where there has been an accident covered by an insurance policy, the insured must give the notice to the insurance company, as required by the policy, unless same has been waived by the insurance company.

Appeal from District Court, Oklahoma County; R.P. Hill, Judge.

Action by Hugh Breeding Transport, Inc., against the American Fidelity & Casualty Company. Judgment for defendant sustaining demurrer to the plaintiff's evidence, and plaintiff appeals. Affirmed.

M.F. Boddie, for plaintiff in error.

Dudley, Hyde, Duvall & Dudley, for defendant in error.

PER CURIAM.

¶1 The plaintiff filed its petition in this case on the 24th day of March, 1933, seeking to recover from the defendant certain expenses incurred by the plaintiff in the trial of a certain lawsuit in the district court of Tulsa county, Okla., entitled "L.A. Coward, Plaintiff, v. Hugh Breeding Transport, Inc., a Corporation," being No. 52868 in said court, and alleges that the expenses of said case in said court of Tulsa county were covered by a certain insurance policy it carried, covering one of the trucks of the plaintiff herein.

¶2 The parties appear in this case as they did in the lower court, and will hereafter be referred to as plaintiff and defendant.

¶3 After plaintiff had introduced its evidence and rested, the defendant demurred to the evidence of the plaintiff, which demurrer was sustained by the court, and thereafter plaintiff filed its motion for a new trial, which was overruled, from which action of the trial court in sustaining said demurrer and overruling said motion for a new trial, to which plaintiff excepted, this case is appealed to this court.

¶4 The rule for the guidance of the trial judge has been announced by this court in numerous cases. This court, in the very recent case of Brown v. Wrightsman, 175 Okla. 189, 51 P.2d 761, announced the rule as follows:

"Trial - Demurrer to Evidence of Plaintiff - Consideration. On a demurrer to the sufficiency of the evidence the question presented to the trial court is, admitting the truth of all the evidence of the plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom, and eliminating all opposing inferences, whether there is any competent evidence tending to support the plaintiff's petition."

See, also, Walker v. McCray, 132 Okla. 18, 269 P. 279; Roach v. De Arman, 143 Okla. 49, 287 P. 399; and Western States Oil & Land Co. v. Helms, 143 Okla. 206, 288 P. 964.

¶5 It appears that the action out of which the suit in Tulsa county grew was caused by one of the trucks of the plaintiff being forced off the public highway and into a ditch, by reason of which the plaintiff in the Tulsa case was injured, and this suit is brought to reimburse this plaintiff for the expense of defending the Tulsa suit, which it claims was covered by the policy involved herein.

¶6 The petition in the suit filed in the Tulsa court does not name or denominate the truck belonging to this plaintiff, which was involved in the accident, but merely refers to it as a truck belonging to this plaintiff.

¶7 The record in this case shows that at the time of said accident out of which grew the Tulsa suit, the plaintiff in this case had two trucks involved - one known as an Autocar convoy, motor No. 021-85, license No. 762T734, and one certain Chevrolet truck motor No. T-2463866, and license No. 743T162; that the Autocar convoy was not covered by insurance, but that the Chevrolet truck referred to was covered by an insurance policy. The record also conclusively shows that the Chevrolet truck was being transported from Oklahoma City on top of the Autocar convoy, to some point beyond Tulsa, at the time it was involved in the accident, and that said Chevrolet truck was not being operated.

¶8 On this point, Mr. Charles A. Percival, who was secretary-treasurer of the plaintiff at the time of said accident, testified (C.-M., pp. 61 and 62) as follows:

"Q. That was the date that the autocar, which has been referred to in this record, was hauling upon its bed this Chevrolet truck which has also been referred to in the record up to Tulsa? Mr. Owens: We object as imcompetent, irrelevant and immaterial; the autocar is not involved in this suit at all; it is the Chevrolet. The Court: He just asked him where the Chevrolet was. Let him answer it. A. The Chevrolet was with the auto. Q. On top of the autocar bed? A. That is what I understand. Q. It was carried from here on up to Tulsa, on or about this date? A. It was over in that neighborhood; it was going beyond Tulsa. Q. It went on to Tulsa? A. It was going beyond Tulsa. Q. Through Sapulpa, and up on the highway beyond Tulsa? A. Yes, sir. Q. That is the autocar and it was hauling on top of its bed this Chevrolet truck? A. Yes, sir. Q. That was on or about March 15, 1932? A. Yes, sir."

¶9 We are, therefore, confronted with the fact, at the outset, that the truck which was involved in the accident out of which the Tulsa suit grew was not covered by the insurance policy set out in the record; and that the Chevrolet truck being transported and not being operated there could be no liability.

¶10 The plaintiff contends in its brief that the stipulation shown in the record to the effect that the Chevrolet car was the car involved in the accident is erroneous, and sets out in his brief what purports to be a copy of said stipulation. Upon an examination of the stipulation as contained in the record, counsel has omitted one of the...