Turpin v. Standard Reliance Ins. Co. (Mutual)

• Decision Date: 06 November 1959
• Docket Number: No. 34634,34634
• Citation: 99 N.W.2d 26,169 Neb. 233
• Parties: Theodore C. TURPIN and Union Insurance Company, a corporation, Appellees, v. STANDARD RELIANCE INSURANCE CO. (MUTUAL), a corporation, and Wilbur Ross Jones, Jr., Appellants.
• Court: Nebraska Supreme Court

Page 26

99 N.W.2d 26

169 Neb. 233

Theodore C. TURPIN and Union Insurance Company, a corporation, Appellees, v. STANDARD RELIANCE INSURANCE CO. (MUTUAL), a corporation, and Wilbur Ross Jones, Jr., Appellants.

No. 34634.

Supreme Court of Nebraska.

Nov. 6, 1959.

Syllabus by the Court

1. The 'omnibus clause' of motor vehicle liability policies is for the purpose of giving additional insureds other than person named in liability policy as insured, with certain limitations, the benefit of the policy, and it extends protection to one permitted to use motor vehicle, although named insured may not be liable for accident.

2. The legislative act relating to title and transfer of motor vehicles constitutes an authorized exercise of police power on the part of the Legislature and does not violate any of the provisions of our state and federal Constitutions.

3. A purchaser who receives possession of a motor vehicle without obtaining the certificate of title thereto, as required by our statutes, acquires no title or ownership therein.

4. The purpose of the act relating to transfers and titles to motor vehicles is to provide a means of identifying motor vehicles, to ascertain the owners thereof, to prevent theft of motor vehicles, and to prevent fraud.

5. A certificate of title to a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle.

6. The word 'owner' means one who has the legal title or rightful title, whether the possessor or not.

7. Statutes in pari materia should be construed together, and, if possible, effect be given to all of their provisions.

8. Every contract is made with reference to, and subject to, existing law, and every law affecting such contract is read into and becomes a part of the same.

9. Where two motor vehicle liability policies contained identical omnibus clauses relating to prorating of loss occurring under the provisions of such policies and a driver, not the owner of the motor vehicle, was driving it with the owner's permission and became involved in an accident resulting in injury and property damage for which a judgment was obtained against him, the insurance carried by such driver would be excess over all other insurance, and the insurance carrier of the owner of the motor vehicle would be liable for the entire judgment sustained against the driver to the extent of the limit of such policy.

Stubbs & Metz, Alliance, for appellants.

Healey, Davies, Wilson & Barlow, Lincoln, Byron M. Johnson, Gering, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiffs, Theodore C. Turpin and Union Insurance Company, a corporation, brought this action for a declaratory judgment in the district court for Dawes County against the Standard Reliance Insurance Company (Mutual), a corporation; Midwest Furniture Company, a corporation; James W. Blanford, individually, and as assignee of Midwest Furniture Company, a corporation; Saint Paul-Mercury & Indemnity Company, a corporation; and Wilbur Ross Jones, Jr., defendants. The trial court ordered that the defendants James W. Blanford, the Midwest Furniture Company, and the Saint Pual-Mercury & Indemnity Company be dismissed from the action. The purpose of the action was to obtain a declaratory judgment determining and declaring that the coverage and terms of the contract issued by the Standard Reliance Insurance Company (Mutual) to Wilbur Ross Jones, Jr., extends to all claims against Theodore C. Turpin for injuries or damages which arose out of an accident while Theodore C. Turpin was driving a 1949 Buick automobile described in the insurance policy of the Standard Reliance Insurance Company (Mutual), a corporation. The trial court found generally for the plaintiffs and against the defendants. A declaratory judgment was rendered declaring that the insurance policy issued by the Standard Reliance Insurance Company (Mutual), a corporation, extended coverage to Theodore C. Turpin with respect to the accident in question. The defendants each filed a separate motion for new trial. These motions were overruled, and defendants perfected appeal to this court.

For convenience we will refer to Theodore C. Turpin as Turpin; to the Union Insurance Company, a corporation, as Union; to the Standard Reliance Insurance Company (Mutual), a corporation, as Standard; to Wilbur Ross Jones, Jr., as Jones; to the Midwest Furniture Company, a corporation, as Midwest Furniture; to General Motors Acceptance Corporation as G.M.A.C.; and to James W. Blanford, as Blanford.

We summarize the pleadings necessary to a determination of this appeal as follows.

The plaintiffs' petition alleged that Turpin was at all times mentioned therein a resident of Chadron, and Jones was also a resident of Chadron; that on January 20, 1954, there was in effect an insurance contract between Jones and Standard by the terms of which Standard insured Jones against any loss or damage arising from the operation of a 1949 Buick automobile owned by Jones and used by him; and that on January 20, 1954, there was in effect an insurance contract between Turpin and Union by the terms of which Union insured Turpin against any loss or damage arising from the operation of a 1938 Chevrolet sedan owned by Turpin.

It was further alleged that on January 20, 1954, at approximately 5:30 p. m., the 1949 Buick automobile owned by Jones and covered by Standard was involved in an accident on U. S. Highway No. 20 approximately 2 miles east of Chadron, with a 1952 Studebaker pickup truck owned by Midwest Furniture and driven by Blanford; that said 1949 Buick automobile was being operated by Turpin with the permission of Jones; that as a result of said accident, Midwest Furniture's 1952 Studebaker pickup truck was damaged and Blanford was injured; that timely notice of said accident and the damages and injuries sustained by Blanford was given to Standard, but Standard denied any and all liability to Turpin, denied any obligation to indemnify and protect Turpin in the premises, and refused to do so; that thereafter suit was commenced by Blanford individually and as assignee of Midwest Furniture in the district court for Dawes County, alleging that the negligence of Turpin was the proximate cause of the accident, and seeking to recover damages for injuries sustained by him and, as assignee of the Midwest Furniture, for damages to the 1952 Studebaker pickup truck, and also seeking to recover, as assignee of Midwest Furniture, the medicial, hospital, and disability payments allegedly paid to him, or on his behalf, by Saint Paul-Mercury & Indemnity Company, the workmen's compensation insurance carrier of Midwest Furniture; and that timely notice of said suit was given Standard, but Standard denied any and all liability to Turpin, denied any obligation to indemnify and protect him from the claims for injuries and damages thus sustained by virtue of the accident, and refused to defend such suit. Plaintiffs contended that Standard had an obligation to defend Turpin in the suit against him by Blanford individually and as assignee of Midwest Furniture; that said obligation arose from the contract of insurance issued by Standard to Jones; and that said obligation also included the payment of any judgment or judgments that might be rendered against Turpin as the result of the law suits growing out of said accident. The petition contained a prayer for a declaratory judgment determining that the coverage and terms of the insurance policy issued by Standard to Jones extended to all claims against Turpin which arose out of the accident while Turpin was driving the 1949 Buick automobile described in Standard's insurance policy.

The answer of Jones and Standard denied any liability under Standard's insurance policy issued to Jones by the terms of which Standard insured Jones against any loss or damage arising from the operation of a 1949 Buick automobile used by Jones or with his permission. The answer alleged that within 10 days prior to January 20, 1954, Jones sold and delivered to Turpin the 1949 Buick automobile; that on January 20, 1954, the Buick automobile was being operated by Turpin as the owner thereof, and not with the permission of Jones within the meaning of Standard's insurance policy and the Union's insurance policy; that on January 20, 1954, the 1949 Buick automobile was newly acquired by Turpin less than 30 days previously; and that on said date the 1938 Chevrolet automobile owned by Turpin was broken down and could not be operated or repaired. The prayer was that defendants might go hence without day and recover their costs expended in this action.

The plaintiffs' reply denied every allegation contained in defendants' answer not admitted in the petition, and renewed plaintiffs' prayer for a declaratory judgment.

The record discloses that Union issued a motor vehicle liability policy insuring Turpin against any loss or damage arising out of the operation of a 1938 Chevrolet owned by Turpin. The term of this policy was from September 28, 1953, to September 28, 1954. On Christmas day 1953, while Turpin was driving his Chevrolet automobile, it became disabled and was sold for junk.

Standard issued a motor vehicle liability policy insuring Jones against loss or damage arising out of the operation of a 1949 Buick automobile owned by Jones. The term of this policy was from January 5, 1954, to July 5, 1954.

Jones purchased the 1949 Buick automobile in August 1953, from Prey Chevrolet Company of Chadron. The sale was financed by G.M.A.C., and insofar as this action is concerned its office was in Denver, Colorado, where the certificate of title issued to Jones for the 1949 Buick automobile was held. Jones was leaving for the Marine Corps in January 1954. He was trying to make a sale of his 1949 Buick automobile and obtain something for his equity in the automobile, but was unable to find a...