John G. Speirs & Co. v. Underwriters at Lloyd's London

MARKS, J.

This is an appeal from a judgment for defendant, in an action in declaratory relief to determine the respective rights, duties and liabilities of the parties under a policy of indemnity insurance written by defendant, the insurer, indemnifying plaintiffs, the insured, against loss or claim of damage under certain circumstances.

The general terms of the policy were broad enough to cover the claim of loss made in this case. Exclusion provisions were contained in and were attached to the policy, and the construction and effect to be given one of them is determinative of this appeal. This clause reads as follows:

“Notwithstanding anything contained herein to the contrary, it is hereby understood and agreed that Paragraph ‘F’ of the form attached to the policy is amended to read as follows;

[604]

“F. It is expressly agreed that the agreement of the Company to indemnify attached only when the liability imposed by law upon the Assured exceeds the amount stated in item (a) and (b) below and then only for such excess

(a) $5,000 as respects any one claim or series of claims arising out of any one occurrence by reason of the ownership, operation, maintenance or control of any automobile, trailer, semi-trailer, tractor, or other motor vehicle; or

(b) $100.00 as respects any claim or series of claims arising out of any one occurrence other than described above ...”

About May 3, 1944, a Dodge truck belonging to Gussie Spears was in the possession of plaintiffs on their business property in Bakersfield for the purpose of having a trailer hitch installed. There was no such hitch then on the truck. The trailer hitch was fabricated by plaintiffs and on May 3d, was being welded on the frame of the truck when a fire occurred damaging the truck in the alleged amount of $2,400, to recover which sum an action was brought against plaintiffs. They notified defendant of the action and demanded that it conduct the defense of the suit. Defendant denied liability and refused the request. This action is to determine the rights and duties of the parties under these circumstances. To settle this question, as the claim for damages was less than $5,000, we must determine if the plaintiffs had “control” of the motor vehicle at the time it was damaged by the fire.