Williams v. General Insurance of America

THOMPSON, J.

This is an appeal from a judgment in favor of plaintiff and against the defendant General Casualty Company in an action based upon a policy of automobile liability insurance. The policy was in the usual form, but in particular covered the operation of any automobile with the permission of the owner except one owned in whole or in part by the plaintiff or any member of his household.

It was alleged that while the policy was in force and effect, plaintiff was operating an automobile with the consent of the owner, which automobile was not owned in whole or in part by plaintiff or any member of his household; that while so driving this automobile, he collided with one Robert Young; that thereafter Robert Young filed an action and recovered a judgment against plaintiff herein, Card R. Williams; that Carl R. Williams had paid the judgment; and that demand had been made upon the defendant insurance company for the repayment thereof under the terms of the policy, which payment was refused.

Plaintiff Williams prevailed at the trial of the instant case, and the defendant insurance company appeals from the judgment.

It is the contention of appellant that the evidence is insufficient to support the finding that plaintiff was not the owner absolutely or in part of the automobile being driven by him and that, even if he were not, he was estopped to deny his ownership. Further, it asserts that it did not waive plaintiff’s failure to furnish it with a copy of the summons and complaint served upon him, nor was it estopped to rely upon such failure as a breach of one of the provisions of the policy and, also, that plaintiff violated a provision of the policy by giving false information.

In examining these contentions, it is important to note at the very beginning that when the case was called for trial the following occurred:

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“The Court: As I understand, I have only two issues, one is the question arising out of the ownership of the automobile; and the other is the question whether the defendant has waived its right under the policy to have the papers turned over to it. So that, with that understanding, it would seem to be unnecessary to spend any further time going through these particular allegations of the pleadings.”