Iowa Mut. Ins. Co. v. Addy

• Court: Colorado Supreme Court
• Writing for the Court: Before ALTER; HOLLAND; MOORE
• Citation: Iowa Mut. Ins. Co. v. Addy, 286 P.2d 622, 132 Colo. 202 (Colo. 1955)
• Decision Date: 02 August 1955
• Docket Number: No. 17622,17622
• Parties: IOWA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff in Error, v. Elsie ADDY, Defendant in Error.

Page 622

286 P.2d 622

132 Colo. 202

IOWA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff in Error, v. Elsie ADDY, Defendant in Error.

No. 17622.

Supreme Court of Colorado, En Banc.

Aug. 2, 1955.

Rehearing Denied Aug. 29, 1955.

Yegge, Bates, Hall & Shulenburg, and Forrest S. Blunk, Denver, for plaintiff in error.

Duane O. Littell and Robert W. Mesch, Denver, for defendant in error.

Before ALTER, C. J., and MOORE, HOLLAND, CLARK LINDSLEY, BRADFIELD and KNAUSS, JJ.

HOLLAND, Justice.

Elsie Addy, defendant in error, hereinafter referred to as plaintiff, on November 27, 1952 was injured in an automobile accident in which an automobile driven by her husband was involved, and which had been provided for his use as a claim adjuster by the Ohio Casualty Company. This was a Chevrolet automobile owned by the insurance company; was used daily by plaintiff's husband in his employment; and with the knowledge and consent of the company was kept at his home overnight.

Plaintiff's husband was the owner of an Oldsmobile sedan on which had been issued to him a standard automobile policy by defendant, now plaintiff in error. This policy contained the standard medical coverage provision and other usual provisions such as 'Temporary substitute automobile,' 'Use of other automobiles,' and provisions under the title 'This insuring agreement does not apply.'

Plaintiff on April 16, 1953 filed her complaint in damages against defendant alleging that defendant had issued to her husband a standard automobile policy covering the Oldsmobile sedan, and that on the 27th day of November 1952, while the policy was in full force and effect, plaintiff was a passenger in the Chevrolet automobile provided for her husband in his claim-adjusting business which was involved in an accident and she was injured. Her complaint and claim is based upon provisions in the policy covering the Oldsmobile sedan which provided for coverage on temporary substitute automobile and the use of other automobiles. Defendant company moved to dismiss the complaint for failure to state a cause of action upon which relief could be granted, which was overruled. Defendant answered, admitting the issuance of the policy; admitting the accident and medical expenses incurred by plaintiff; but denied that the automobile in which plaintiff was riding at time of the accident was covered by the policy issued by defendant company on the Oldsmobile sedan. The issues thus made were submitted to the court without a jury, which at the conclusion of all the evidence, found the issues joined for plaintiff and entered judgment in her favor in the sum of $1,000, the amount provided in the policy, together with interest thereon. Review of that judgment is sought by writ of error.

The record discloses the following facts:

On the evening of November 26, 1952 plaintiff's husband returned to his home in Wheatridge from Steamboat Springs, where he had been on business for the company by which he was employed and had been using the Chevrolet automobile provided by the company. The following day, being Thanksgiving Day, plaintiff, her husband and their children were about to leave their home to attend Thanksgiving dinner at the home of friends living across the city of Denver, when plaintiff's husband observed that their Oldsmobile sedan was low on gasoline and had heavy snow chains on the tires, and he thereupon decided to use the Chevrolet, or the company car. While en route the accident occurred in which plaintiff sustained personal injuries.

November 1, 1952, defendant company issued its standard liability policy on the Oldsmobile sedan. The pertinent provision of the policy is as follows:

'Temporary substitute automobile--Under coverages A, B and C on automobile not owned by the named insured while temporarily used as a substitute for the described automobile while withdrawn from normal use because of its breakdown, repair, servicing, loss, or destruction.'

The other provisions in the policy herein mentioned are not of sufficient consequence to require discussion and we pass to the provision of the policy, namely, 'This insuring agreement does not apply:'

'(b) This insuring agreement does not apply:

'(1) to any automobile owned by, hired as part of a frequent use of hired automobiles by, or furnished for regular use to the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured or spouse;

'(2) to any automobile while used in the business or occupation of the named insured...