Mid-Continent Cas. Co. v. West

• Decision Date: 01 December 1959
• Docket Number: No. 38460,MID-CONTINENT,38460
• Citation: 351 P.2d 398
• Parties: CASUALTY COMPANY, Plaintiff in Error, v. Ray L. WEST, Administrator of the Estate of Golda May West, Deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 398

351 P.2d 398

1959 OK 245

MID-CONTINENT CASUALTY COMPANY, Plaintiff in Error, v. Ray L. WEST, Administrator of the Estate of Golda May West Deceased, Defendant in Error.

No. 38460.

Supreme Court of Oklahoma.

Dec. 1, 1959.

Rehearing Denied April 5, 1960.

Application for Leave to File Second Petition for Rehearing

Denied May 3, 1960.

Syllabus by the Court

In an action on an automobile liability policy containing a temporary substitute automobile provision, the fact that the insured's auto was not unfit for all use and was temporarily replaced by the substitute auto merely because of the worn condition of its tires, and the further fact that the insured's auto may have been available for use of the substitute's owner (while the latter was being used by the insured) did not prevent the coverage of the policy sued upon from extending to the substitute auto.

Appeal from the District Court of Grady County; L. A. Wood, Judge.

Action by a judgment creditor, as plaintiff, against his judgment debtor's insurance carrier as defendant, to compel defendant's contribution to the satisfaction of said judgment under the terms of an insurance policy defendant issued the debtor containing a 'Temporary Substitute Automobile' provision. After judgment for plaintiff, defendant appealed. Affirmed.

Looney, Watts, Looney & Nichols, Anna B. Otter, Oklahoma City, for plaintiff in error.

Walt Allen, and Sam M. Williams, Chickasha, and Funston Flanagan, Walters, for defendant in error.

BLACKBIRD, Justice.

On the morning of September 19th, 1956, one Lenard E. Tucker, a resident of Temple, Oklahoma, and also an employee of Sparks Grain Company, owned a 1954 model Buick, and his father, sometimes hereinafter referred to as 'Mr. Tucker', who was a cafe operator in the same town, owned a 1956 model Pontiac. On that morning, Lenard E. Tucker, hereinafter referred to as the 'insured', or by his given name of 'Lenard', having been directed by his employer, the evening before, to drive from Temple to Oklahoma City on Company business, left his parent's home, where he also resided, ate breakfast at his father's cafe and decided while there, that because of the worn condition of his Buick's tires, he would not drive it on that trip. Accordingly, he borrowed his father's Pontiac and left his Buick, with the keys in it, parked on the street near the cafe. Lenard had not driven the Pontiac many miles toward Oklahoma City before becoming involved in a collision, which resulted in the death of defendant in error's intestate. After the accident, Lenard returned to Temple in the Pontiac about 1:30 that afternoon, and, after returning said auto to his father, worked the rest of the day at Temple, driving his own car.

Thereafter, in an action for damages on account of the aforementioned death, defendant in error recovered judgment in the sum of $25,650.00 against Lenard. Insurance companies other than plaintiff in error contributed to the limit of their coverages in paying $15,000.00 of said judgment. Thereafter, Lenard made written demand upon plaintiff in error, his insurer under a liability insurance policy issued to him in connection with his ownership and operation of the Buick, to pay the amount of its claimed coverage, i. e., $5,000.00 on the remainder of said judgment debt, aggregating more than $10,000.00.

Plaintiff in error denied liability under the policy and defendant in error instituted the present action, as plaintiff, to recover the $5,000.00 against plaintiff in error, as defendant.

Upon trial of the cause before the court, after jury waiver, said plaintiff recovered the judgment sought; and the defendant insurer perfected this appeal. We will hereinafter refer to the parties by their trial court designations, and to Lenard E. Tucker as the 'insured.'

There is no significant question of fact present herein, it being agreed that the only question to be determined is whether or not the policy involved covered the insured's operation of his father's Pontiac under the circumstances in evidence. The policy's provision controlling the matter extends the claimed coverage to a 'Temporary Substitute Automobile', which term it defines as follows:

'* * * an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.' (Emphasis ours.)

Defendant's position in denying liability under the policy at the trial, and in herein attacking the trial court's judgment rejecting said denial, depends solely on whether or not, under the circumstances surrounding the insured's driving of his father's Pontiac on the aforedescribed trip of September 19th, 1956, it was a 'temporary substitute automobile' within the above-quoted definition.

Defendant's argument under its single proposition seems to be two-pronged in that it maintains that, during the insured's use of his father's Pontiac on the trip, his own car--the Buick, referred to in the above quoted provision as 'the described automobile'--was not only not 'withdrawn from normal use', but that its not being used for the Oklahoma City trip was not 'because of its breakdown, repair, servicing, loss or destruction', within the meaning of the above provision's quoted phrases.

Defendant contends that the last quoted phrase requires that the insured's own automobile be in such a condition that it is 'actually disabled' and...