Whitlock v. Individuals, Firms and Corporations, Subscribers at and Inter-Insurers under the name of U.S. Inter-Insurance Ass'n

• Decision Date: 12 January 1932
• Citation: Whitlock v. Individuals, Firms and Corporations, Subscribers at and Inter-Insurers under the name of U.S. Inter-Insurance Ass'n, 6 P.2d 1088, 138 Or. 383 (Or. 1932)
• Parties: WHITLOCK v. INDIVIDUALS, FIRMS AND CORPORATIONS, SUBSCRIBERS AT AND INTER-INSURERS UNDER THE NAME OF UNITED STATES INTER-INSURANCE ASS'N .
• Court: Oregon Supreme Court

6 P.2d 1088

138 Or. 383

WHITLOCK v. INDIVIDUALS, FIRMS AND CORPORATIONS, SUBSCRIBERS AT AND INTER-INSURERS UNDER THE NAME OF UNITED STATES INTER-INSURANCE ASS'N .

Supreme Court of Oregon

January 12, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Earl Whitlock, administrator of the estate of S. M Moreno, deceased, against the Individuals, Firms and Corporations, Subscribers at and Inter-insurers under the name of United States Inter-Insurance Association. From judgment for plaintiff, defendants appeal.

Affirmed.

This is an action upon a contract and policy of insurance executed by the defendants to one Fred E. Lyons. The cause was tried by the court without a jury. Findings of fact were made and a judgment was rendered in favor of plaintiff, from which judgment defendants appeal.

John Lichty, of Portland, for appellants.

Nicholas Jaureguy, of Portland (Jaureguy & Tooze and Mautz & Mautz all of Portland, on the brief), for respondent.

BEAN C.J.

The testimony taken in this cause is not before this court. The defendants assign as error that the findings of fact do not support the judgment. The findings of fact, as made by the court, were in substance as follows: Fred E. Lyons was operating, in and about the city of Klamath Falls, what is known as "anywhere for hire" bus service. About November 10, 1927, he procured from the Public Service Commission a permit describing a certain Buick automobile as the car he was authorized to use in his business. At the time of the accident, which was the cause of the litigation, Lyons used a certain Star sedan in the operation of his "anywhere for hire" business, and the driver thereof so negligently operated the same that he injured plaintiff's intestate, and for those injuries Lyons was legally liable.

In the policy defendants agreed to make compensation up to "$5,000 for death or injury to one person" resulting from the operation of, or in connection with, motor vehicles operated by or for the assured, provided the carrier is legally liable therefor. The policy of insurance was filed with the Public Service Commission by Lyons as a condition to obtaining his permit. While the permit and application named a certain Buick automobile, there was attached to the policy what is commonly termed "The Public Service Commission Rider." The determination of the action depends upon the interpretation of that rider, which contains, in substance the following language:

"This policy to which this endorsement is attached is written in pursuance of and is to be construed in accordance with Chapter 380, General Laws of Oregon for 1925 and acts amendatory thereof and supplemental thereto and the rules and regulations of the Public Service Commission of Oregon adopted thereunder. In consideration of the premium stated in the policy to which this endorsement is attached, the insurer hereby waives the description of the motor vehicle or motor vehicles to be insured hereunder and agrees to make compensation, within the limits set out in the following schedule, for injury to, and/or death of persons and loss of or damage to property resulting from the operation of or in connection with motor vehicles and/or trailer and/or other equipment operated by or for the assured, provided said carrier is legally liable therefor.

"On each motor vehicle used for the transportation of persons having a passenger seating capacity of 12 passengers or less not to exceed.

"$5,000.00 for death or injury to one person;

"$10,000.000 for death or injury to more than one person;

"$1,000.00 for loss of or damage to property of any person or persons other than the assured.

"For the purpose of this endorsement the term 'operations' shall be construed and to include said motor vehicles trailers and/or other equipment, whether the same be in motion or otherwise, and whether attached or detached.

"All conditions and provisions of this policy and any statement or agreements contained therein or endorsed thereon in conflict with the rider are by agreement of all parties hereto held null and void in so far as they are in conflict therewith.

"This policy cannot be canceled by the insurer or by the insured without first giving thirty (30) days' written notice to the insured and Public Service Commission of Oregon. It is understood and agreed that the operating equipment covered by this policy is being operated under a permit issued by the Public Service Commission of the State of Oregon, and that in the event of cancellation of said permit this policy shall thereupon become null and void without further notice."

It will be noticed from the clause made a part of the policy that the defendants agreed to make compensation for injuries to or death of persons or loss of or damage to property resulting from the operation of or in connection with motor vehicles and/or trailer and/or other equipment operated by or for the assured, provided that said carrier is legally liable therefor.

S. M. Moreno instituted and prosecuted an action against Fred E. Lyons in the circuit court for Klamath county for the injuries caused by the negligent operation of the car used in the "anywhere for hire" business of the insured, and, on October 18, 1928, duly obtained a judgment against Fred E. Lyons in the sum of $25,000 and costs. Thereafter execution was issued upon the judgment, which was returned unsatisfied. This judgment fixed the liability of Fred E. Lyons in the matter. On December 2, 1928, S. M. Moreno died, and plaintiff was duly appointed administrator of his estate.

The court found, and the record warrants such finding, that Fred E. Lyons was rendered legally liable to said Ms. S. M. Moreno, plaintiff's intestate, for the injuries described in plaintiff's complaint, and that, by reason of the policy, the defendants were obligated to make compensation to plaintiff for such injuries not exceeding the limit set forth in the indorsement on the policy, and that the plaintiff is entitled to judgment against the defendant in the sum of $5,000, with interest thereon at the rate of 6 per cent per annum from the 18th day of October, 1928, until paid, together with $400 attorneys' fees, and rendered judgment accordingly.

By the plain provisions of the rider, the insurance covered the Star car, which was being operated. It was one of the motor vehicles operated by the assured. While it was not specifically named, it plainly came within the embrace of the policy.

In the construction of a contract, the court should simply declare what is found therein and not insert what has been omitted, or omit what has been inserted. Section 9-214, Oregon Code 1930. We do not deem the clause of the rider to be ambiguous. While the Star car is not specifically mentioned, it comes within the sweeping clause of "loss of or damage to property resulting from the operation of or in connection with motor vehicles and/or trailer and/or other equipment operated by or for the assured."

This court must presume that the evidence introduced upon the trial of this cause justified the lower court in making any of the findings in favor of plaintiff. Since the evidence is not before us, it must be presumed that the findings and conclusions of the lower court were supported by the evidence. Tyler v. Bier, 88 Or. 430, 172 P. 112; In re Davenport, 114 Or. 650, 236 P. 758.

The main purpose of chapter 380, p. 756, General Laws of Oregon for 1925, was to provide revenue for the use, maintenance repair, and reconstruction of public highways and to defray the expenses of the administration of the act. The regulations in regard to the application and issuance of a permit are for the convenience and benefit of the state and for the protection of the public. Section 5 of the act (prior to amendment by Laws of 1929, C. 394, section 55-1305, Oregon Code 1930), providing for obtaining a...