Williams v. Standard Acc. Ins. Co.

• Decision Date: 18 March 1958
• Citation: 158 Cal.App.2d 506,322 P.2d 1026
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard WILLIAMS, Plaintiff and Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY, Defendant and Respondent. Civ. 5614.

Page 1026

322 P.2d 1026

158 Cal.App.2d 506

Leonard WILLIAMS, Plaintiff and Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY, Defendant and Respondent.

Civ. 5614.

District Court of Appeal, Fourth District, California.

March 18, 1958.

Vizzard, Baker & Sullivan and Jere N. Sullivan, Bakersfield, for appellant.

H. T. Ellerby and Henry F. Walker, Los Angeles, for respondent.

MUSSELL, Justice.

On May 5, 1952, plaintiff Leonard Williams was injured in an automobile accident involving a 1941 Chevrolet sedan owned and operated by one Alvin Weishaar. Williams brought a personal injury action against Weishaar and on January 21, 1954, recovered a judgment against him for $5,959.60 and costs. This judgment became final and when it was not paid, Williams instituted the instant action for damages against the defendant insurance company, claiming that an automobile liability insurance policy which it had issued to Weishaar covering his 1941 Dodge coupe also provided coverage of the said Chevrolet sedan at the time of the accident. Trial was had by the court without a jury and plaintiff appeals from the judgment entered for the defendant.

Weishaar applied to defendant insurance company for insurance on his 1941 Dodge coupe and upon receipt of the premium therefor, defendant company issued an insurance policy to him as the named insured, covering the period January 7, 1952 to January 7, 1953. The said Dodge coupe was the sole described automobile in the policy and the company agreed to pay on behalf of in insured 'all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at the time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.' Appellant Williams claims that the evidence as a matter of law establishes that this protection is to be extended to coverage of the Chevrolet sedan which was owned by Weishaar and involved in the accident on May 5, 1952. Appellant's claim is based on the provisions in the insurance policy found under 'Insuring Agreements', subdivision IV, and reading as follows:

'(a) Automobile. Except where stated to the contrary, the word 'automobile' means:

'(1) Described Automobile--the motor vehicle or trailer described in this policy: * * *

'(4) Newly Acquired Automobile--an automobile, ownership of which is acquired by the named insured who is the owner of the described automobile, if the named insured notifies the company within thirty days following the date of its delivery to him, and if either it replaces an automobile described in this policy or the company insures all automobiles owned by the named insured at such delivery date; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other valid and collectible insurance.

The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.'

The record shows that on January 25, 1952, Weishaar purchased and paid for the Chevrolet sedan involved. The certificate of title given to him is dated January 28, 1952, and he testified that the car was delivered to him 'anywhere within a couple of days to two weeks after January 25, 1952.' Weishaar did not notify the defendant company within thirty days of this delivery to him, as required by the quoted portion of the insurance policy, and such notice was not given to the company until after the accident had occurred. On May 15, 1952, Weishaar applied to the Automobile Club of Southern California for and secured insurance on the Chevrolet sedan involved. He sold his Dodge car in November, 1952, and cancelled his insurance on it.

He testified that he owned a 1939 Oldsmobile and had owned it since 1951 and until after the date of the accident; that the Oldsmobile was not insured at the time of the accident; that while he did not know just how long it had been since it had been insured, the only car he recalled as being insured in the period January 7, 1952, to the date of the accident was the Dodge; that if he 'had any on the Oldsmobile, he did not recall it.' He further testified that when he purchased the Chevrolet on January 25, 1952, there were no wheels or tires on it, 'didn't have any windshields, the windshields were broke, the headlight was gone, upholstery was tore up, it needed two new fenders, needed a...