Utilities Ins. Co. v. Wilson, 34526
| Decision Date | 12 November 1952 |
| Docket Number | No. 34526,34526 |
| Citation | 251 P.2d 175,207 Okla. 574 |
| Parties | UTILITIES INS. CO. v. WILSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In order to establish coverage for a motor vehicle it must be described or referred to in the policy and capable of being identified as such.
2. A truck owned by insured at time insured procured policy on another truck owned by him is not covered by policy which provided for automatic coverage for 'newly acquired vehicle.'
3. A truck owned by insured at time insured procured policy on another truck owned by him is not covered by policy which provided for coverage for substitute vehicles 'not so owned' by insured.
4. Failure to serve case-made not grounds for dismissal of appeal where record examined and party not served not considered as 'opposite party' under 12 O.S.1951, § 958.
Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiff in error.
Cargill, Eagleton & Cargill, Oklahoma City, for defendant in error.
Between November 1 and December 1, 1948, a public liability policy of the Utilities Insurance Company was delivered to Leonard Magerus, effective December 31, 1948, for a one-year period to December 31, 1949, covering a 1947 Chevrolet truck. At the time the policy was issued, Magerus also owned a 1948 Chevrolet truck, which was not insured. On January 22, 1949, the 1948 Chevrolet truck was involved in an accident with Lawrence G. Wilson. At the time of the accident the 1947 Chevrolet truck was not in use by Magerus, having been left for some time on his farm without being driven.
Following the accident Lawrence G. Wilson instituted an action in the District Court of Oklahoma County against Leonard Magerus and his brother John Magerus, the driver of the truck, for damages for personal injuries alleged to have been sustained as a result of being struck by the 1948 Chevrolet truck, and recovered a judgment against them. After this judgment became final and execution against both Leonard and John Magerus had been returned unsatisfied, an affidavit for garnishment addressed to Utilities Insurance Company was filed in the cause by Lawrence G. Wilson. Utilities Insurance Company answered denying any indebtedness to Leonard Magerus or John Magerus and denying any liability as garnishee in the action. Wilson elected to take issue with the answer, and upon a hearing the trial court held that the insurance policy issued on the 1947 Chevrolet truck also covered the 1948 Chevrolet truck under Paragraph VI and Paragraph IX of the policy written on the 1947 truck.
Insuring Agreement IX provided:
'(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, or
'(b) if it is an additional automobile and if the Company insures all automobiles owned by the Named Insured at such delivery date, but only to the extent the insurance is applicable to all such previously owned automobiles * * *.'
The 1948 Chevrolet truck, being owned by Leonard Magerus at the time the policy was issued on the 1947 truck, could not have been a newly-acquired vehicle under the terms of the policy.
Appleman on Insurance Law and Practice, Vol. 7, Sec. 4293, states:
The 1948 truck could not have been newly acquired within the meaning of Insuring Agreement IX for the further reason that the policy provided that the company must be given notice 'within thirty days' following the date of the delivery of the truck to the insured, or the acquisition thereof. The truck not being newly acquired, no such notice was given by Leonard Magerus.
In Mitcham v. Travelers Indemnity Company, 4 Cir., 127 F.2d 27, 29, the court said:
'There is another insuperable objection to recovery under the policy in suit. The provisions of Article IV in regard to the automatic transfer of the insurance from one car to another expressly 'do not apply * * * unless the named insured notifies the company within ten days following the date of delivery of such other automobile'. The insured did not comply with this requirement. The new car was delivered on January 20, 1940 and the insured was killed while driving it on February 1, 1940. It was only after his death and after liability for damages had been incurred that the company was notified that the new car had been purchased and that a transfer of the insurance was claimed.
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