Sowers v. Iowa Home Mut. Cas. Ins. Co.

Decision Date21 February 1961
Docket NumberNo. 2959,2959
Citation359 P.2d 488
PartiesLloyd SOWERS d/b/a Laramie Feed and Trucking Service, Appellant (Plaintiff below), v. IOWA HOME MUTUAL CASUALTY INSURANCE COMPANY, Appellee (Defendant below).
CourtWyoming Supreme Court

G. R. McConnell and Walter Scott, Laramie, for appellant.

Pence & Millett, George J. Millett, Laramie, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action brought by Lloyd Sowers against the Iowa Home Mutual Casualty Insurance Company for damages sustained to a tractor and trailer near Elko, Nevada. The parties will be mentioned herein as in the court below, by name, or as appellant and appellee. The court rendered judgment in favor of the defendant and the plaintiff has appealed. Plaintiff pleaded in his first cause of action, aside from the allegations relating to the damages sustained, that he was entitled to recover under the policy here in question, the nature of which will be mentioned somewhat later. In the second cause of action, in addition to the upset and damage sustained by the plaintiff, he alleged that on or before the 24th day of August 1957, plaintiff applied to the Laramie Investment Company, the agent of the defendant, for insurance against loss of damage and comprehensive coverage by collision and upset of his tractors, trailers and units which he used in his business of hauling for hire; that the defendant by its agent agreed to become the insurer to the plaintiff on said units and issue a policy against loss without limiting the area in which plaintiff would be hauling property for other persons; that defendant through its agent issued a policy limiting the radius to 500 miles from Laramie that plaintiff immediately advised defendant through its agent that the policy issued was in error and not the type of insurance which defendant had agreed to deliver and which had been ordered by the plaintiff; that these facts were brought to the attention of the Laramie Investment Company and C. N. Bell, general agent for defendant at Cheyenne; that said agents agreed that the 500-mile-radius limit was included by error and that a new policy would be issued as ordered by plaintiff; that in the meantime it was agreed that plaintiff was to notify the Laramie Investment Company of trips to be taken and units to be covered by insurance that were not on the policy; that one Middleton, agent of defendant, agreed to provide Sowers with postcards which could be readily mailed to the Laramie Investment Company advising of said trips but that the agents never provided the cards, which fact was brought to the attention of the Laramie Investment Company; that defendant through its agents agreed that no question would be raised as to the out-of-radius trips and that the company would take no advantage of it; that defendant has neglected and refused to issue the proper insurance policy agreed to be issued; and that, relying upon the representations of the agents of the defendant, the plaintiff took a trip on or about September 3-6, 1957, and sustained the damages in an upset in the sum of $12,128.67, for which judgment was asked.

Defendant answered, admitting that the policy described in the petition of plaintiff was in force on September 5, 1957, that the tractor and trailer were involved in an accident near Elko, Nevada, on or about September 6, 1957, and that defendant was notified of the accident, but alleging that the policy provided that defendant would not be liable for any loss or claims resulting from an accident or damage while the vehicle was being used, driven, operated or maintained beyond a radius of 500 miles from Laramie, Wyoming, and that the accident alleged in the complaint of plaintiff occurred more than 500 miles from Laramie.

During the course of the trial the plaintiff moved the court to add paragraph 15, as follows, to his second cause of action:

'That the Defendant by words and actions waived any conditions of said policy relative to 500 mile radius and reporting thereof by misleading and lulling the Plaintiff into the belief that he was fully covered by insurance for out of radius trips; that said out of radius trips are not in violation of the policy; and that there was no necessity of reporting the same until cards were furnished the Plaintiff by the Defendant for such purpose; that by such misleading words and actions the Defendant should be estopped to deny liability on the said policy.'

The insurance policy here in question is numbered HCA 252-212. It had, among other provisions, the following:

'[not in small type] 22. Changes: Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy.'

The policy further provided:

'(Commercial Automobiles)

'In consideration of the premium at which this policy is issued, it is agreed that the Company shall not be liable for any losses or claims whatsoever that result from any accident or damage caused by or involving any commercial automobile covered under this policy while such automobile is being used, driven, operated or maintained beyond the radius as stated herein. Radius of operation shall be measured from the limits of the city or town of principal garaging to the limits of the city or town farthest removed to which the Insured operates. Within a 500 mile radius of Laramie, Wyoming.'

The policy was issued pursuant to a special application signed by the Laramie Investment Company and directed to the defendant company. This application contained the radius limit of 500 miles heretofore mentioned and also stated:

'I also agree that this insurance shall not take effect until approved at the Home Office of the Company.'

The application is dated August 24, 1957, the date which the policy in question bears.

The testimony herein is substantially to the following effect: The C. N. Bell Agency of Cheyenne was the general agency for Wyoming for the insurance company. E. G. Jackson, doing business under the name of Laramie Investment Company, was the local agent of the Bell company. Richard Rejda was the local manager. Robert Middleton was an employee of the Bell agency who occasionally made trips over the state for the Bell agency arranging for insurance. Lloyd Sowers, doing business under the name of Laramie Feed and Trucking Company, formerly carried his insurance, or most of it, with the Tri-State company. Jackson lost his right to do business for that company and made arrangements for the defendant insurance company to take over the business formerly done with the Tri-State company, including the insurance for Sowers. The latter apparently had his trucks insured with the Tri-State company, protecting him when he was driving within the radius of 500 miles from Laramie with a provision for trips outside of that radius for which special rates were paid. The Tri-State special provision is not shown in the record. No such provision is in the policy here. The Bell agency had no authority to write insurance for a radius of more then 300 miles and was required to obtain special authority from the home office for a larger radius. The Jackson agency, according to the testimony of Jackson, had no authority to write insurance for trucks except pursuant to authorization and permission from the Bell agency. A policy referred to by the parties as a liability policy was issued to Sowers on May 1, 1957. It had the limitation of a 500 mile radius. The insurance policy in question here was issued on August 24, 1957, limiting the radius of driving to 500 miles. The plaintiff, through a driver, made a trip from Omaha to the west coast starting September 3, 1957. His tractor and trailer were wrecked on the morning of September 6, 1957, about 40 miles west of Elko, Nevada, more than 500 miles from Laramie. The defendant insurance company refused to pay the damages and the plaintiff sued to recover the amount heretofore mentioned.

Sowers, the plaintiff, testified that at various times when he became uneasy as to whether the out-of-radius trips were covered by insurance he called Rejda and the latter assured him that he was fully covered until he received postal cards. He testified that the first talk that he had with reference to the postal cards was on March 11 or 12, 1957. The same thing was told him on July 13 when he was making a trip to Los Angeles. Another time was on August 10 or 13 when Rejda assured him that until he got the cards he was covered. Another time Rejda told him that 'an occasional trip' would take care of one, two or three trips. On September 2 he had a conversation with Rejda concerning which he testified as follows:

'That I was going to send that [load] to San Francisco, and that I needed coverage, and at that time I was informed that I didn't have to call. Until I got them cards I was covered, and not to worry, but I told him to be sure that I was covered. I told them I was going out there and that my broker in Frisco would call him back probably to be sure I had insurance because I would bring a load of produce back.'

Plaintiff further testified that he made two hog trips and they were occasional, although he did not know what regular trips meant, and that he did his business with Jackson's office and depended on them. He further testified that he continued to haul hogs for a period of about two months until sometime in November 1957 when he got sick. In August 1957 he purchased two diesel tractors with sleepers and two trailers called 'hog palaces' which are used for hauling hogs long distances and are designed so that they can be cleaned and produce hauled back on the return trip. He was setting up hauls from Omaha to the west...

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