Universal Underwriters Ins. Co. v. Johnson, 7888
| Decision Date | 09 August 1961 |
| Docket Number | No. 7888,7888 |
| Citation | 110 N.W.2d 224 |
| Parties | UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Edwin JOHNSON, d/b/a Johnson Motor Sales, and Agnes Johnson, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where defendant, a retail dealer in new and used cars and trucks, authorized to do business in the United States or Canada, purchased from plaintiff a liability insurance policy covering automobiles owned, maintained or used principally in his business operations, and the occasional use for other business purposes, and the use for non-business purposes by the insured, a partner, executive officer, or a member of the household of any such person, it is held, for reasons stated in the opinion that such policy covered damages resulting from a two-car accident by defendant's wife while driving a Cadillac automobile in Florida purchased by insured for the purpose of driving same to attend a convention in Florida, of the National Automobile Dealers Association of which insured was a member and area chairman.
Ilvedson, Pringle, Herigstad & Meschke, Minot, for plaintiff and appellant.
Ella Van Berkom, Minot, for defendants and respondents.
This is an appeal from a judgment of the district court of Mountrail County, rendered August 11, 1959 in favor of the defendants and against plaintiffs.
The plaintiff brought the action for a declaratory judgment relieving it from any liability, under a liability insurance policy sold to the defendants for any damages resulting from an accident in which the defendant Agnes Johnson was involved in driving a Cadillac automobile at Miami Beach, Florida.
The facts out of which this action arose are substantially as follows:
The defendant, Edwin Johnson individually is engaged in the retail sale of new and used automobiles and trucks, at Stanley, North Dakota. He operates a garage in connection with his sales business and maintains a repair shop for servicing and repairing trucks and automobiles. He has a franchise for the sale of Buick automobiles.
The defendants have a home at Stanley, North Dakota, and they also maintain a home at Hollywood Beach, Florida. It is customary for defendant's wife, Agnes Johnson, to go to their Florida home and spend the winter months, and on occasion her husband would take trips to the Florida home.
Mr. Johnson carried liability insurance with several insurance companies covering cars and trucks owned by him and damages that might result from the use of same. Both Mr. and Mrs. Johnson would drive any of the cars in the garage at any time, anywhere and any place they might desire to go.
On or about November 3rd, 1954, Jack Harris the agent of the plaintiff sold the defendant a garage liability insurance policy, covering liability in connection with the use and operations of cars and trucks owned by him and used in the conduct of his garage business. The policy No. AL-24461 and admitted in evidence as plaintiff's exhibit '1'. This policy was automatically renewed from year to year. Johnson thereupon cancelled his other insurance policies, or permitted them to lapse at their expiration dates.
The defendants kept and maintained a Buick automobile at their Florida home for use by himself or his wife, while they were living there.
In January 1958, the defendant, Edwin Johnson purchased a new Cadillac automobile from Fisher Motors, at Minot, North Dakota to use in driving to Hollywood Beach, Florida, to attend a convention of the National Automobile Dealers. The Cadillac was purchased at wholesale price and paid from the bank account of Edwin Johnson d/b/a Johnson Motor Sales. Edwin Johnson drove the Cadillac car to Hollywood Beach, Florida. The Cadillac was titled and licensed in the name of Edwin Johnson.
On January 11, 1958, the defendant Agnes Johnson, wife of Edwin Johnson, was driving the Cadillac automobile in Miami Beach, Florida and while driving became involved in a two-car collision. As a result of the collision a personal injury action was brought against the defendants in the State of Florida. The plaintiff Insurance Company contends that the liability policy issued to Edwin Johnson d/b/a Johnson Motor Sales, did not cover the Cadillac car or any damages resulting from the collision in which the defendant, Mrs. Johnson was involved. The insurance company then brought this action in the district court of Mountrail County for a declaratory judgment construing the terms of the policy in question.
The defendants answered claiming that the Cadillac automobile was fully covered under the policy issued by the plaintiff and that under its terms the plaintiff is liable for any property damages in any suit brought against the defendants arising out of operation of said vehicle.
Judgment is demanded, declaring plaintiff be adjudged responsible for any legal liability of the defendants.
The case was tried in the district court of Mountrail County to the court without a jury and judgment was rendered for the defendants to the effect that the insurance policy in controversy does cover the Cadillac automobile and any damages resulting from the two-car collision in which the defendant Agnes Johnson was involved while driving the Cadillac in the State of Florida.
From this judgment the plaintiff brought this appeal.
The question for determination is whether under the conditions and terms of the policy the plaintiff, as insurer, is liable for property damage resulting from the accident in which the defendant Agnes Johnson was involved while driving the Cadillac car in Florida. The policy defines the operations it covers as follows:
'Definition of Hazards. Division 1, Premises, Operations, Automobiles:
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