Utilities Ins. Co. v. Potter

• Decision Date: 12 March 1940
• Docket Number: 27536.
• Citation: 105 P.2d 259,188 Okla. 145,1940 OK 127
• Parties: UTILITIES INS. CO. v. POTTER et al.
• Court: Oklahoma Supreme Court

105 P.2d 259

188 Okla. 145, 1940 OK 127

UTILITIES INS. CO. v. POTTER et al.

No. 27536.

Supreme Court of Oklahoma

March 12, 1940

Rehearing Denied Sept. 17, 1940.

Syllabus by the Court.

1. Garnishee, an insurance carrier, issued its liability insurance policy to a class "B" motor carrier under the provisions of section 4, chapter 156, S.L.1933, 47 Okl.St.Ann. § 169, which statute provides that the policy "shall bind the obligor hereunder to make compensation for injuries to *** persons *** resulting from the operation of any such motor carrier for which such carrier is legally liable." Held, that under the terms of the contract of carriage involved herein, said insurance carrier is liable to a passenger of such motor carrier who is injured through the negligence of such carrier, even though said injuries were sustained outside of the State of Oklahoma.

2. When a motor carrier files with the Corporation Commission a liability insurance bond as a prerequisite to the issuance to it of a certificate of convenience and necessity and thereby procures the issuance of such a certificate by the Corporation Commission, neither it, nor its bondsmen may successfully contend that its bond limits the liability imposed by the statute except as to amount.

3. The manifest purpose of a statute requiring the taking out of a policy of liability insurance as a condition of the granting of a certificate for passenger carrying vehicles on improved public highways is the protection of passengers and members of the public who may be injured by negligence of bus operators, and a policy issued for such purpose must be construed most strongly against the insurer.

4. Before this court can review the action of the trial court in refusing to grant removal of a cause to the United States District Court, or in overruling a motion to quash a garnishment order, such alleged errors must be presented to the trial court by motion for a new trial.

Appeal from District Court, Oklahoma County; R. P. Hill, Judge.

Action by Charles Hubert Potter against R. O. Burbridge to recover damages for personal injuries, wherein the plaintiff recovered a judgment. The judgment became final and garnishment proceedings were issued against the Utilities Insurance Company, the insurance carrier of the defendant. Judgment was rendered against the garnishee, and it appeals.

Judgment affirmed.

BAYLESS C.J., WELCH, V. C.J., and GIBSON, J., dissenting.

Clayton B. Pierce and Truman B. Rucker, both of Oklahoma City, for plaintiff in error.

John Barry, of Oklahoma City, and Williams, Cowan & Benedum, of Norman, for defendants in error.

OSBORN Justice.

Charles H. Potter, hereinafter referred to as plaintiff, recovered a judgment in the District Court of Oklahoma County against R O. Burbridge, hereinafter referred to as defendant, for damages for personal injuries. The judgment became final and garnishment proceedings were issued against Utilities Insurance Company, the insurance carrier of defendant hereinafter referred to as garnishee. The trial court sustained plaintiff's demurrer to the garnishee's answer, which incorporated therein by agreement of the parties, all of the evidence on which it relied to defeat its liability. Judgment was rendered against it and an appeal is prosecuted to this court in behalf of the garnishee.

Plaintiff was a member of the Oklahoma University Band. Defendant held a certificate issued by the Corporation Commission as a Class B Motor Carrier. On November 22, 1934, defendant entered into a contract with the business manager of the Band to furnish transportation to said Band "for a trip to Washington D. C., via Stillwater, Oklahoma, St. Louis, Missouri, and Cincinnati, Ohio, returning via Nashville, Tennessee, and Memphis, Tennessee". The trip was to commence on November 24, 1934. By the terms of the contract defendant was "to furnish such insurance as is already posted in care of the Corporation Commissioner as required under the Class B permit". The contract was taken in the name of the Southwestern Teachers College, a trade name, but the judgment rendered against defendant, Burbridge, conclusively established the fact that he was the operator of the motor buses involved herein and was in fact the contracting party even though the contract was signed by him "as agent" for said Southwestern Teachers College.

It appears that plaintiff was injured twice while on the trip, the injuries occurring in the States of West Virginia and Tennessee. Upon those injuries the judgment involved herein is predicated.

The insurance company denies liability on two grounds, (1) that the motor vehicle in which Potter was injured was not covered by its policy, and (2) that the injuries occurred outside of the State of Oklahoma. The policy was filed with the Corporation Commission and became effective on September 11, 1934. It is called a "combination automobile policy" and under its general provisions it purports to insure against loss from liability and for damages from bodily injury, including death resulting therefrom, accidentally suffered by any person or persons, subject to the limitations expressed in the declarations. Under its general terms the policy insures against loss "only within the limits of the United States (exclusive of Alaska, the Hawaiians, Philippines, and Virgin Islands and Puerto Rico) and Canada" and in another part of the contract it is provided that the policy does not cover loss while "beyond the boundaries of the United States of America and Canada or while in Alaska or the Island possessions of the United States". The garnishee contends that the above quoted general provisions of the policy have not application for the reason that liability arising thereunder is limited to the declarations of the policy which limit the general liability to insurance upon two International motor buses, whereas the buses involved in the injuries to plaintiff were Ford V-8 buses, and were not buses named in the declaration. In this connection we are referred to an endorsement designated as Form C on the policy which is that portion of the policy purporting to comply with the statutory requirements for issuance of a certificate of convenience and necessity by the Corporation Commission. The form of said endorsement is prescribed by rule of the Commission and provides, in part, as follows:

"Motor Vehicle Form No. 'C'

Insurance Policy Endorsement

The policy to which this endorsement is attached is written under and pursuant to the provisions of chapter 113, of the Session Laws of Oklahoma, 1923, and it is to be construed in accordance therewith and the rules and regulations of the Corporation Commission of Oklahoma and implies an acceptance of such rules and regulations, and is payable to the State of Oklahoma for the benefit of all persons who may suffer personal injuries, including death, or property damage due to any negligence of the assured, his/its agents, employes, or representatives in the operation or use of any motor vehicle under certificate of public convenience and necessity No. 1905.

In consideration of the premium stipulated in the policy to which this endorsement is attached the insurer hereby waives a description of the motor vehicles operated or used under said certificate and agrees to pay any final judgment rendered against holder of such certificate for personal injuries, including death, or damage to property other than that of the holder of said certificate due to the negligence of said holder, his/its agents or employees, or representatives, in the operation or use of any motor vehicle, whether listed in the original schedule of motor vehicles filed with the original application or whether it be an additional, substituted or emergency vehicle operated under said certificate by any order or rule of the Corporation Commission within the limits of the schedule hereinafter set out, and further agrees that, upon its failure to pay any such final judgment within sixty days from the date of its rendition or final affirmance on appeal, the judgment creditor may maintain an action against it in any court of competent jurisdiction to enforce such payment. This policy shall be a continuing indemnity. The indemnity thereof shall not be reduced as to any succeeding accident by any payment of any claim or by any judgment or any previous accident. Nothing contained in the policy or any endorsement thereon, nor the violation of the provisions thereof or any law of the state by the assured shall relieve the insurer from any liability hereunder or from the payment of any such judgment

No condition, provision, stipulation or limitation contained in the policy or any other endorsement thereon nor the violation of any of the same by the insured shall affect in any way the right of any person injured in his person or property by the negligence of the insured or relieve the company from the liability provided for in this endorsement, or from the payment to such person of any such judgment, to the extent and in the amounts set forth in the schedule shown hereon; but the conditions, provisions, stipulations and limitations contained in the policy and any other endorsements thereon shall remain in full force and be binding as between the insured and the company."

Section 4, Chapter 156, Session Laws 1933, 47 Okl.St.Ann. § 169, was in force and effect at the date of issuance of the policy involved herein and provides as follows:

"Section 4, Section 3708, Oklahoma Statutes, 1931, be and the same is hereby amended to read as follows:

'Section 3708. No certificate of convenience and necessity, or permit, shall be issued by the Corporation Commission to any motor carrier until after such motor carrier shall have filed with the Corporation Commission

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