Sunshine Mut. Ins. Co. v. Addy
| Citation | 38 N.W.2d 406,72 S.D. 634 |
| Decision Date | 19 July 1949 |
| Docket Number | 9061. |
| Parties | SUNSHINE MUT. INC. CO. v. ADDY et al. |
| Court | Supreme Court of South Dakota |
Rehearing Denied Aug. 19, 1949.
Caldwell & Burns, Roy D. Burns, Howard B. Crandall, R. N. Swark Sioux Falls, for plaintiff-appellant.
T R. Johnson, C. J. Delbridge, Sioux Falls, C. H. McCay, Salem for defend-respondent.
Blaine Simons, Sioux Falls, amicus curiae.
Bielski Elliott & Lewis, Sioux Falls, for petitioner in intervention and respondent.
The question presented by this appeal is whether at the time of the collision hereinafter referred to, the truck of respondent Addy was covered by a certain liability insurance policy. The action is for a declaratory judgment. The trial court held that the truck at the time in question was within the coverage of the policy.
Mr. Addy is a farmer living near Stanley Corners in McCook County. In 1948 he owned a Dodge truck which he used in his farming. He insured his liability in the operation of this truck with the appellant, Sunshine Mutual Insurance Co., the policy in question covering the period from January 22, 1948 to January 22, 1949. In February 1948 Mr. Addy purchased from Henry Krumvieda of Canistota an International truck, and received an assignment of Krumvieda's Class B. Motor Carrier permit. In his application to the Public Utilities Commission for transfer of this Class B permit, Mr. Addy described not only the International truck but also the Dodge truck. The permit included both trucks. In June 1948 in his renewal application he again described both trucks, and the Class B permit issued July 1, 1948 included the two trucks. Mr. Addy employed his uncle, Bill Addy, who lived at Canistota to operate the International truck and conduct the trucking business with that truck. Mr. Addy testified that 'occasionally, once in a while' he would do commercial trucking under his Class B permit with the Dodge truck.
On the morning of the accident, July 7, 1948, Mr. Addy's uncle, who operated the International truck, advised Mr. Addy that he had a full load that morning and was unable to take to market two head of cattle from a farm near Canistota and a hog from a farm south of Highway 16. Mr. Addy thereupon arranged to haul these two cattle and the hog to market in Sioux Falls. It is undisputed in the record that he was to transport the cattle and the hog as a commercial trucker under his Class B. permit which covered the Dodge truck he was operating.
Mr. Addy lived about one-fourth of a mile south of Highway 16, which leads directly to Sioux Falls, and a mile east of Stanley Corners in McCook County. The two head of cattle which Mr. Addy was taking to market were obtained from a farm eight or nine miles northeast of the Addy farm and several miles north of Highway 16. The hog which Mr. Addy intended to haul to market was on a farm south of Highway 16. The accident occurred after Mr. Addy had picked up the two head of cattle and while he was on his way to get the hog for transportation. Mr. Addy was about to cross or was crossing Highway 16 on his way to get this hog when he was struck by or he struck the other truck involved in the collision. Mr. Addy testified that it was necessary for him to go to Sioux Falls on the morning of July 7 to get repairs for a combine for his brother, and that he would not have made the trip to get the cattle and the hog had it not been necessary for him to go to Sious Falls to get these repairs.
The insurance policy issued by appellant company upon this Dodge truck, as stated above, was issued prior to the time Mr. Addy received his permit to operate this truck as a Class B Motor Carrier. None of the officers or agents of the company was advised or knew of the issuance of this permit to Mr. Addy, or that he ever used this truck for transporting property under such permit.
The policy...
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