Espree v. Western Pioneer Ins. Co.

159 Cal.App.2d Supp. 875 (1958) JOSEPH ESPREE, Respondent,

v.

WESTERN PIONEER INSURANCE COMPANY (a Corporation), Appellant.

California Court of Appeals.

Apr. 18, 1958. Ericksen & Ericksen and Robert H. Kroninger for Appellant.

McDonald, Brunsell, Brethauer & Walters for Respondent.

WAGLER, P. J.

Plaintiff, as insured, brought suit against the defendant, as insurer, to recover the cost of repairing his truck which he contends was damaged as the result of an "upset." Judgment was for plaintiff and defendant appeals.

In April 1956, plaintiff purchased a 1951 ten-wheel dump truck from Cook Brothers Truck and Equipment Company. At the same time he purchased insurance coverage on said truck from the defendant.

Thereafter plaintiff received through the mail from the defendant a "Certificate of Insurance" which specified coverage [159 Cal.App.2d Supp. 877] for "bodily injury liability," "property damage liability," "collision or upset," and fire and theft. This certificate also contained a "loss payee" clause providing that any loss due to collision or upset, fire or theft, was payable to the lienholder (Cook Brothers Truck and Equipment Company) to the extent of its lien. The certificate was actually a copy of the first page of a policy of insurance which was on a date not disclosed by the record delivered to the lienholder. The "Certificate of Insurance" contained none of the insuring agreements, exclusions or conditions of the policy.

On August 15, 1956, while engaged in hauling fill to the Oakland Army Base, plaintiff was required to back off the road approximately 50 feet on to fill which had previously been dumped. The plaintiff's version of what happened thereafter is contained in a statement written on August 16th by the claims agent of the defendant and signed by the plaintiff. This statement reads as follows: "I backed the truck into position and started the hydraulic hoist to dump the load. When the bed got half-way up, the earth under the right rear wheel gave way from the weight and caused the right rear wheel to sink into to about 2 or 3 inches from the axle. This put a strain on the frame and the weight of the load in the bed caused the frame of the bed to break and the bed itself fell or was twisted off to the right." The plaintiff who was the only witness to the occurrence gave substantially the same version at the trial. There was, however, additional testimony to the effect that when plaintiff got out of the truck to see what had happened, the right rear wheels, all four of them were in the earth. The left wheels, all five of them were off the ground 10 to 12 inches and the only thing that was preventing the truck from tipping over was the right rear corner of the truck bed. The subframe of the truck was sheared off and the hoist rod was broken.