Somerville v. Providence Washington Indem. Co.

• Decision Date: 12 July 1963
• Court: California Court of Appeals Court of Appeals
• Parties: James SOMERVILLE, Jessie Somerville, Patricia Somerville and Jean Somerville, by their Guardian ad Litem, James Somerville, Plaintiffs and Appellants, v. PROVIDENCE WASHINGTON, INDEMNITY COMPANY, a corporation, Defendant and Respondent. Civ. 20426.

Page 378

32 Cal.Rptr. 378

218 Cal.App.2d 237

James SOMERVILLE, Jessie Somerville, Patricia Somerville and Jean Somerville, by their Guardian ad Litem, James Somerville, Plaintiffs and Appellants, v. PROVIDENCE WASHINGTON, INDEMNITY COMPANY, a corporation, Defendant and Respondent.

Civ. 20426.

District Court of Appeal, First District, Division 2, California.

July 12, 1963.

Rehearing Denied July 30, 1963.

Hearing Denied Sept. 4, 1963.

Walkup & Downing, Bruce Walkup, E. Robert Wallach, San Francisco, Stewart Cureton, Santa Cruz, William B. Boone, Santa Rosa, of counsel, for appellants.

Shirley, Saroyan, Cartwright & Peterson, San Francisco, for respondent.

KAUFMAN, Presiding Justice.

This is an appeal from a summary judgment in favor of the respondent, Providence Washington Indemnity Company. Appellants, James and Jessie Somerville, filed their complaint for personal injuries sustained by them and their minor children on July 13, 1957, when the Somervilles were involved in an accident with a 1951 Ford sedan driven by one Victor Williams. The complaint alleged that at the time of the accident, defendant, James J. Kincaid, was the owner of the 1951 Ford which was operated with his consent by Williams and that prior to the time of the accident, respondent had issued and delivered to Kincaid a written policy of liability insurance which covered the 1951 Ford and was in full force and effect.

The complaint further alleged that Victor Williams died intestate as a result of the injuries suffered in the accident and thereafter, Robert Coward was duly appointed as administrator of his estate. After the administrator rejected appellants' claims as creditors of the estate, appellants filed action No. 473491 in San Francisco against Williams and Kincaid. On May 22, 1959, a judgment was duly entered in favor of the appellants and against Williams' administrator in action No. 473491 and paid by Williams' insurance company, The Travelers Indemnity Company. The complaint further alleged that respondent herein had reasonable notice and actual knowledge of action No. 473491 and refused to defend the action on behalf of the administrator; that no adjudication as to the liability of Kincaid was made in action No. 473491 and that prior to trial, appellants voluntarily filed their request for dismissal of that action as against Kincaid without prejudice. Thereafter, on October 23, 1959, appellants filed this action.

Respondent's answer alleged that Kincaid's defense in 473491 was that he sold and delivered the 1951 Ford to Williams on June 2, 1957; that on June 17, 1957, respondent made an offer of a contract of liability insurance to Kincaid for his garage and auto painting business on the express condition that the consideration therefor, the premium of $291.87, be paid in cash in advance before delivery of the policy contract. Respondent's answer further alleged that Kincaid never tendered the premium so that the policy was never delivered and was cancelled in September, 1957; and in the alternative, that the policy applied only to Kincaid's garage and auto painting business and did not cover the 1951 Ford.

On June 14, 1961, respondent moved for a summary judgment on the ground that this action had no merit because Kincaid did not own the Ford on July 13, 1957, and therefore could not give Williams permission to drive it on that day so that Williams could not be an additional assured driving an owned automobile under the policy. The motion was supported by the affidavit of Kincaid based on his deposition in 473491 which stated that after several days of talking, he and Williams came up with a deal on the sale of the 1951 Ford. First, Williams offered Kincaid $100 cash for the car and Kincaid accepted. After Williams had written a check for $75 on account, they talked further and Kincaid agreed to paint the car and accept $50 in cash and Williams' 1950 Ford coupe in payment. Kincaid continued: 'On this occasion at Victor Williams' home, I endorsed and dated the 1951 Ford's pink certificate of ownership. Then I asked him to sign it. He did. Then I delivered it to him. As he finished his signature I said, 'Now the car is yours.' He hesitated a moment thinking something over and he said, 'Well, maybe I better not keep this pink slip.' I asked him why. He said, 'I will have trouble with my insurance company being you still have possession of the automobile while you are painting. I think it is better for you to keep the pink slip and the car and bring the car with the pink slip.' And I agreed.

'During the week I painted the 1951 Ford. On Monday, June 3, 1957, I delivered possession of the newly painted 1951 Ford to Victor Williams at his shop. I there delivered the white certificate of registration to Victor Williams. It was inside the automobile. I handed to Victor Williams the pink certificate of ownership endorsed by me and dated, and signed and addressed by him. He placed it in a little cash box where he kept his petty cash in his office there at his place of business.

'Williams delivered to me his 1950 Ford and his check for $50 in full payment, as per our agreement. I cashed this check that day. I have seen a photocopy of this check.

'Thereafter Victor Williams kept and had possession of, and used, the 1951 Ford, and he kept the white certificate of registration in the automobile, and he kept and retained possession of the pink certificate of ownership.

'Victor Williams did not have the pink certificate of ownership on the 1950 Ford so he wrote out and gave to me a bill of sale on the 1950 Ford.'

The motion was also accompanied by the declaration of Jean Williams as to her testimony by deposition in action 473491. Mrs. Williams remembered Kincaid and her husband talking about the transaction which involved a trade of cars and identified the check for $50 dated June 2 which her husband gave to Kincaid along with the 1950 Ford on that date. Mrs. Williams' recollection of the transaction was vague and she did not know whether it had been completed although she was present during the talks leading up to the transaction and at the time the exchange of documents took place, according to Kincaid. Mrs. Williams further stated that after the accident, Kincaid had been very concerned about the fact that the 1951 Ford was still in his name and that at the suggestion of her insurance agent, she notified the Department of Motor Vehicles about the transfer by a letter dated September 13, 1957. The letter erroneously gave the date of the sale as June 10, 1957, and stated that she did not know if the pink slip to the two vehicles had been transferred.

The declaration of Gary Williams based on his deposition in 473491 stated that he was in the house at the time of the transaction but was not paying too much attention. Gary remembered seeing the white registration certificate after the accident but did not remember ever seeing a pink slip. The declaration of Arthur Kennedy, the uncle of Victor Williams, based on his deposition in 473491 stated that he had seen the white certificate of registration in the car. The declaration of respondent's attorney in support of the motion for summary judgment quoted a portion of the policy indicating that the named insured was the Kincaid auto painting business, and defined the hazard insured against as: 'The ownership, maintenance or use of the premises for the purpose of an automobile dealer, repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the ownership maintenance or use of any automobile in connection with the above defined operations, and the occasional use for other business purposes and the use for non-business purposes of (1) any automobile owned by or in charge of the named insured and used principally in the above defined operations, and (2) any automobile owned by the named insured in connection with the above defined operations for the use of the named insured, a partner therein, an executive officer thereof, or a member of the household of any such person.'

The counter-affidavit of Bruce Walkup in opposition to the motion for summary judgment stated that he was one of the attorneys for the appellants in 473491; that the declarations based on the depositions in 473491 are not completely quoted by the respondent; that the deposition of Kincaid taken in action 473491 indicates that at the time of the deposition and trial, Kincaid was an inmate of the California State Prison at Soledad as he had been convicted of robbery in the second degree; that Kincaid discussed his deposition with his insurance company and others.

The counter-affidavit further avers that the official records of the Department of Motor Vehicles show that on July 13, 1957, when the accident occurred, Kincaid was the registered owner of the 1951 Ford involved in the accident and that Victor Williams was the registered owner of the 1950 Ford; that the pink slip for the 1951 Ford has never been found or delivered; that Arthur Kennedy in action 473491 also testified that he made a search of all the papers and belongings of Williams, did not find any pink slip or certificate of ownership pertaining to the 1951 Ford, and that he was the only person assisting Mrs. Williams with valuable papers, etc. after her husband's death; that the deposition of Gary Williams, in addition to the matters related above, indicated that Gary did not think that his father had given Kincaid a bill of sale, and also had never seen the pink slip for the 1951 Ford; that Mrs. Williams also testified she did not know whether the transaction had been completed and had never seen the pink slip to the 1951 Ford. She found the pink slip for the 1950 Ford in its original envelope in 1958. The counteraffidavit also quotes a portion of the policy No. LCA 2613, issued by the respondent to Kincaid, indicating that the policy was a comprehensive general automobile...