Nevin v. Mercer Casualty Co.

California Court of Appeal Feb 29, 1936 No. Civ. 1586Published

Before: Barnard

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Holding. The court held that the defendant's admission of sending a letter acknowledging the existence of an insurance policy, combined with the defendant's failure to offer evidence supporting its claim of mistake, was sufficient to sustain the trial court's finding that the policy existed.

Issues

Whether the evidence was sufficient to support the trial court's finding that an insurance policy existed.
Whether the trial court erred in admitting a letter from the defendant acknowledging the policy into evidence.
Whether the presumption arising from an unappealed order for inspection of documents supported the judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The letter, the sending of which was admitted, constitutes a recognition of the policy on the part of the appellant sufficient to sustain the finding that the policy was duly issued”

“Under these circumstances, we think the pleadings and the absence of evidence on the part of the appellant justified the inference drawn by the court that the policy was in existence, and support the judgment.”

BARNARD, P. J.

The plaintiff recovered judgment against one James J. Mallon in an action for personal injuries caused through the negligent operation of a truck driven by Mallon. Thereafter, the present action was filed based upon the contention that this defendant had insured the said Mallon against any such claims arising from his operation of the truck. The court found for the plaintiff and entered a judgment from which the defendant has appealed.

The appellant contends that the evidence is not sufficient to sustain the judgment in that it fails to show the existence of any policy of insurance covering the matter in question. Incidentally, it is argued that certain evidence tending to show the existence of a policy was erroneously received because of the failure to prove that the original policy was in the possession of the appellant. The appellant put in no evidence and relies entirely upon its contention that there is no competent evidence justifying the inference that such a policy was in existence.

The complaint alleged that after the filing of the former action against James J. Mallon the said Mallon notified this appellant of the filing of said suit and furnished it with a copy of the summons and complaint therein, and that this appellant thereupon sent a letter to the said Mallon, reading as follows:

[224]

“THE

“MERCER CASUALTY COMPANY

“OF CELINA, OHIO

“Full Coverage Automobile Insurance “Claim Department Celina, Ohio

“July 27, 1931

“Mr. James J. Mallon, and/or J. E. Kendrick 817 Havana Avenue,

Long Beach, California.

“Dear Sir: Re: Policy No. 74366

“As you are aware suit has been filed against you in the Superior Court of Orange County, .California by Chjarley A. Nevin, being Cause No. 28538, by reason of alleged personal injuries sustained as the result of accident occurring May 19th last in which the Truck insured under the above Policy was involved, being in the amount of $54,232.00 “The Public Liability limits of the above Policy are $50,000 and $100,000. You therefore have an uninsured interest over and above the limits of your Policy, and it is your privilege and duty to secure such legal counsel as you deem necessary to protect your rights in the matter. ¡

Nevin v. Mercer Casualty Co.

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BARNARD, P. J.

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