Munson v. Speck

• Court: South Dakota Supreme Court
• Writing for the Court: RUDOLPH
• Citation: Munson v. Speck, 76 S.D. 599, 83 N.W.2d 479 (S.D. 1957)
• Decision Date: 11 June 1957
• Docket Number: No. 9628,9628
• Parties: Emil MUNSON, Plaintiff and Respondent, v. Alfred SPECK, Defendant, and Security General Insurance Company, a corporation, Garnishee Defendant and Appellant.

Page 479

83 N.W.2d 479

76 S.D. 599

Emil MUNSON, Plaintiff and Respondent, v. Alfred SPECK, Defendant, and Security General Insurance Company, a corporation, Garnishee Defendant and Appellant.

No. 9628.

Supreme Court of South Dakota.

June 11, 1957.

Gene E. Pruitt, Sioux Falls, for garnishee defendant and appellant.

Morgan & Fuller, Mitchell, for plaintiff and respondent.

RUDOLPH, Judge.

The plaintiff has a judgment against the defendant, Alfred Speck, for injuries sustained when struck by a car driven by Speck on May 1, 1955. In this proceeding the plaintiff seeks to recover from the garnishee defendant, Security General Insurance Company, under a policy of liability insurance it had issued to Speck. The trial court held the Insurance Company liable. The company has appealed. We reverse the judgment of the trial court.

The car driven by Speck at the time of the accident was not the specific car described in the policy but was a car owned by his father. Plaintiff seeks recovery under a policy provision which provides for coverage of an automobile 'not owned by the named insured while temporarily used as the substitute for the described automobile while withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction; * * *'

The trial court found that the car owned by Speck and specifically covered by the policy 'was temporarily not in use because of its breakdown', and that the car Speck was driving at the time of the accident came within the coverage of the above quoted provision of the policy.

The only witness to testify was the defendant Speck. It appears that the automobile specifically covered by the policy was a 1950 used Studebaker which Speck had purchased in November 1954 from Andy Pflaum, an automobile dealer at Wessington Springs. Speck agreed to pay $650 for the car. He made a down payment of $250 and was to pay the balance at the rate of $38.25 a month. Two monthly payments had been made by March 30, 1955 and on that date Speck was in default on the payments. While driving the car on March 30, 1955, a tire became flat, and having no spare tire, Speck hauled the car into a farmyard. He further testified that some 'rods' were making trouble and the car was using oil, but it was not in such condition it could not be driven, except for the flat tire. Speck notified Mr. Pflaum that the car was at the farmyard, and Pflaum took the car to his garage. Speck testified, 'I turned it over to Andy Pflaum and told him to take it in.' It further appears that when the car was purchased Speck signed a transfer of title in blank which was left with Mr. Pflaum. After leaving the car in the farmyard Speck never again saw it. Speck further testified as follows:

'Q. At that time (when the car was left in the farmyard) didn't you intend to just abandon it because you owed so much on it and you couldn't pay for it? A. Well, yes.

'Q. In other words as of that time you were through with it? A. Yes.

'Q. You didn't care what happened to it; isn't that about right? A. That's right.'

We are of the view that this evidence established without serious question that Speck had renounced any further interest in the car. He had abandoned it and 'turned it over to Andy Pflaum' who held the transfer of title signed by Speck. Mr. Pflaum actually took possession of the car and it was never again seen by Speck.

Speck did answer 'Yes' to a question by counsel for the plaintiff as follows: 'But at the time of the accident you considered it to be your automobile?' But this conclusion of the witness is without real probative effect, when considered in the light of the facts disclosed by this record.

It is clear that there was no 'loss or destruction' of this automobile within the meaning of the quoted provision of the policy. The question presented is whether the automobile being driven by Speck at the time of the accident was 'temporarily used as the substitute for the described automobile while withdrawn from normal use because of its breakdown, repair, (or) servicing.' It was thirty days or more between the time the car was abandoned in the farmyard and the time of the accident. In the meantime the car had been taken into the Pflaum garage. There is no showing that it was not driven to the garage after the flat tire was repaired, or that the car was not in running condition at the time of the accident. The record is clear that Speck was not interested in whether any repairs were made. He never saw the car after leaving it in the farmyard. True, so far as Speck was concerned the car had been withdrawn from normal use, but it is apparent from the record that the reason for such withdrawal was an testified to by Speck that he was through with it, didn't care what happened to it and turned it over to Andy Pflaum. It is further apparent that Speck never intended to and never did use the Studebaker after leaving it in the farmyard. Under these circumstances we do not believe the car was 'temporarily used as the substitute' for the Studebaker within the meaning of the policy. No one would seriously contend if Speck had sold the Studebaker on March 30, that a car driven by him thirty days later would be driven as a 'substitute' for the Studebaker as that term is used in the policy. We do not believe the present facts any more nearly reach the situation intended to be covered by this policy provision than the actual sale of the car. The word 'tempo...