Morton v. Travelers Indemnity Co.

121 Cal.App.2d Supp. 855 (1953) HUGH B. MORTON et al., Appellants,

v.

THE TRAVELERS INDEMNITY COMPANY (a Corporation), Respondent.

California Court of Appeals.

Oct. 22, 1953. William M. Hawkes for Appellants.

Luce, Forward, Kunzel & Scripps and R. Sherman Platt for Respondent.

BURCH, J.

Plaintiff Hugh B. Morton appeals from a judgment entered after a general demurrer was sustained to his complaint.

Defendant insurance company issued an automobile liability policy to plaintiff, which included also bodily injury, property damage, and medical payments resulting from an accident involving plaintiff's Chevrolet car.

As regards "excess" medical payments up to $1,000 limit, resulting from an accident, coverage was afforded assured while operating or occupying another automobile provided the other automobile was not in a class excluded by conditions expressed in the insuring agreement. [121 Cal.App.2d Supp. 857]

Plaintiff received injuries involving medical payments of $3,104, while operating his wife's Studebaker. The wife's insurer paid $2,000 of these, and plaintiff seeks to recover on his Chevrolet policy the $1,000 limit.

The court below entered judgment for defendant after a general demurrer was sustained to the complaint. As regards the use of other automobiles, the insuring agreement with its conditions is set out in the complaint as follows:

"V. Use of Other Automobiles:"

"If the named insured is an individual who owns the automobile classified as 'pleasure and business' or husband and wife either or both of whom own said automobile, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to said automobile applies with respect to any other automobile, subject to the following provisions:"

"(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes (1) such named insured, (2) the spouse of such individual if a resident of the same household and (3) any other person or organization legally responsible for the use by such named insured or spouse of an automobile not owned or hired by such other person or organization. Insuring Agreement III, Definition of Insured, does not apply to this insurance."