Ohio Cas. Ins. Co. v. Nelson, 33686

• Decision Date: 31 January 1957
• Docket Number: No. 33686,33686
• Citation: 49 Wn.2d 748,306 P.2d 201
• Court: Washington Supreme Court
• Parties: OHIO CASUALTY INSURANCE COMPANY, Appellant, v. Robert L. NELSON, Defendant, John T. Conlin and Leona C. Conlin, his wife, Respondents.

Page 748

49 Wn.2d 748

306 P.2d 201

OHIO CASUALTY INSURANCE COMPANY, Appellant, v. Robert L. NELSON, Defendant John T. Conlin and Leona C. Conlin, his wife, Respondents.

No. 33686.

Supreme Court of Washington, Department 2.

Jan. 31, 1957.

Kahin, Carmody & Horswill, Seattle, for appellant.

Arthur R. Paulsen, Tacoma, for respondents.

OTT, Justice.

This is an action in which the plaintiff sought a declaratory judgment to establish the extent of its liability under the provisions of its insurance policy issued to one of the defendants, Robert L. Nelson. From a judgment in favor of the defendants John and Leona Conlin, the plaintiff has appealed.

The facts are substantially as follows: On October 29, 1952, the appellant, Ohio Casualty Insurance Company, through the George Dunton agency, issued a public liability policy to Robert L. Nelson. The automobile described in the policy was his 1939 Buick four-door sedan. The premium payments were made, and the policy was in full force and effect until October 30, 1954.

The provisions of the contract were the standard insurance provisions relative to bodily injury, and property damage liability. The provisions material to a consideration of the issues raised by this appeal are as follows:

'Definition of Insured. With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'Insured' includes the Named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the Named Insured or with his permission. * * *

'Automobile Defined. * * *

'(a) Automobile. Except where stated to the contrary, the word 'automobile' means:

'(1) Described Automobile--the motor vehicle or trailer described in this policy; * * *

'(4) Newly Acquired Automobile--an automobile, ownership of which is acquired by the Named Insured who is the owner of the described automobile, if the Named Insured notifies the Company within thirty days following the date of its delivery to him, and if either it replaces an automobile described in this policy or the Company insures all automobiles owned by the Named Insured at such delivery date; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the Named Insured has other valid and collectible insurance. The Named Insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.'

On January 7, 1954, an endorsement was placed upon the policy, designated as a 'Change of Automobile or Coverage Endorsement.' The endorsement specified: 'The policy is amended to cover the following described Automobile * * * 1947 Frazer 4 Dr. Sedan. * * * This policy ceases to cover the following Automobile * * * 1933 [sic] Buick 4 Dr. Sedan.' The endorsement was signed by The Ohio Casualty Insurance Company, George Dunton, Agent.

In July, 1954, the insured, Robert L. Nelson, purchased on contract from Grassi Motor Company in Tacoma a 1949 Mercury automobile. The motor company sold and assigned the contract to the National Bank of Washington. Robert Nelson delivered to the bank a fire, theft, and material damage policy covering a 1949 Chevrolet sedan, issued by the American Fidelity and Casualty Company through the George Dunton agency. The bank notified the George Dunton agency of Robert Nelson's newly acquired Mercury and requested an endorsement changing the coverage from a Chevrolet to the Mercury in the American Fidelity and Casualty Company policy, by two letters reading as follows:

'July 2, 1954

'Mr. George Dunton

'P. O. Box 269

'Santa Ana, California

'RE: American Fidelity and Casualty

'Policy No. AFC 251610

'Robert L. Nelson

'Gentlemen:

'We have recently purchased the contract of Robert L. Nelson covering his 1949 Mercury Sedan, Motor No. 9CM 196341 from the Gassi [sic] Motors of this city.

'We have in our possession the above captioned policy covering his previous automobile. Please forward to us a change of car endorsement and a completed loss payable endorsement, a set of which is enclosed.

'Yours very truly,

'Jack Smith

'Instalment Loan Dept.'

'July 20, 1954

'Mr. George Dunton

'P. O. Box 269

'Santa Ana, California

'RE: Policy No. AFC 251610

'American Fidelity and Casualty

'Robert L. Nelson

'Gentlemen:

'We have recently purchased the contract of Robert L. Nelson from the Grassi Motors of this city covering his 1949 Mercury Sedan, Motor No. 9CM 196341.

'We have in our possession the above captioned policy covering his 1949 Chevorlet Sedan. Please forward to us a Chevrolet Sedan. Please forward to us a loss payable endorsement, a set of which is enclosed.

'Yours very truly,

'R. E. Salonen

'Instalment Loan Dept.'

On Octover 16, 1954, while the Mercury was being driven by one Junior Parker, it was involved in a collision with another automobile, in which the respondents John Conlin and Leona Conlin, his wife, were injured. Respondents obtained a judgment against Robert L. Nelson for bodily injuries and property damage which they sustained and for which, in their cross-complaint in this proceeding, they sought...