Rice Brothers, Inc. v. Glens Falls Indemnity Co.

VAN DYKE, P. J.

Plaintiff corporation was engaged in the performance of a grading-and paving contract in Merced which required the use of a number of dump trucks. It owned and used on the work some 10 or 12 trucks and needed more. It made oral arrangements with one Holloway for the use- of two of Holloway’s trucks. They were furnished by Holloway, “fully operated and maintained,” that is, they went to

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the job with drivers, and Holloway paid the wages of the men, paid for the gasoline and oil consumed and for any repairs that might be necessary. Plaintiff paid Holloway $4.66 an hour per truck. One of plaintiff’s own trucks driven by its own servant damaged a Holloway truck. Plaintiff had the truck repaired at a cost of $947.71. It filed this action against defendant, a corporation engaged in the business of insuring against public liability. Its complaint alleged that on the day the Holloway truck was damaged it was the insured in such a policy issued by defendant corporation and that under that policy defendant agreed to indemnify plaintiff against any liability, within the limits of the policy, “which might arise against plaintiff in favor of any person or persons who should sustain any damage to property by accident by reason of the ownership, maintenance or use by said plaintiff of a motor vehicle”; that on that day a motor vehicle owned and operated by plaintiff had been so negligently and carelessly driven by plaintiff through its employee that it collided with the Holloway truck, damaging that truck in said amount; that after notice and rejection of claim it had paid the amount of the damage to Holloway and that defendant refused to indemnify it against that loss by repayment of the sum paid out. Defendant insurance company denied that the coverage was as alleged and pleaded that the policy contained an exclusion clause which excluded the loss claimed and was in this language : “This policy does not apply . . ., to injury to or damage of property owned by, rented to, in charge of, or transported by the insured.”

The trial court found the allegations of plaintiff’s complaint to be true, the allegations of the answer to be untrue and gave judgment for the amount demanded. The defendant has appealed.

The issues tried called for the consideration of two contracts, one written, the other oral. No evidence was introduced concerning the negotiations for and the execution of the written agreement nor was it claimed to be uncertain or ambiguous in its terms. The only part thereof the application of which was in dispute was the exclusion clause. As to the oral agreement between plaintiff-respondent and Holloway the testimony may be narrated as follows;