Bradley v. Pacific Employers Insurance

KNIGHT, J. The plaintiffs, Minnie Bradley and Georgia Wells, brought this action against the insurance carrier of William Schassler to recover the amount of two separate judgments for damages in the sums of $1,196 and $341 theretofore obtained by plaintiffs against Schassler on account of injuries received by them in a collision between an automobile owned and driven by Schassler and the one in which plaintiffs were riding. The defendant company denied liability upon the ground that certain conditions specified in the policy exempting the insurer from liability existed at the time of the accident. The trial court so found, and accordingly rendered judgment for defendant, from which plaintiffs appeal. Insufficiency of the evidence to support the findings and judgment is the ground of appeal. The points urged in that behalf are without merit.

The insurance policy sued upon is known as a “Non-Alcoholic Policy.” It is issued in consideration of a reduced [621]premium. On the outside of the policy, at the top, in large red type, appeared the notation “Non-Alcoholic Policy” ; and at the top of the first page, inside, also in large red type, appeared the notation “This Policy Contains Alcoholic Exclusions ; See Section 2 Paragraph ‘E’ of the Conditions.” The exclusions thus referred to provided: ‘ ‘ This Insurance is Subject to the Following Conditions, Limitations, and Agreements : 2. Exclusions. It Is a Material Condition op This Policy : . . . (E) The Company shall not be liable under Section Two (2) of the Policy, (1), if at the time of the accident intoxicating liquor is being carried in or on the automobile covered herein; (2) if the Assured or Driver had been drinking intoxicating liquor; (3) if the Assured or Driver was driving while intoxicated.’ For the purposes of this policy all beverages of any alcoholic content (except those beverages which are commonly known as ‘non-alcoholic’) shall be considered intoxicating liquor. Conclusive proof of the carrying, transportation or use of intoxicating liquor shall be either or all of the following conditions: (1) By the statement of the Assured, Driver, or any other person having knowledge of such possession, use or transportation of said liquor; (2) By the findings and/or reports of Police Investigators ; (3) By the statement and/or testimony of witnesses in any trial or prosecution of any claim arising out of the accident.” The basic findings of the trial court were that “. . . at the time of and within one hour prior to said accident . . . said William Sehassler had been drinking intoxicating liquor within the definition contained in said policy of automobile insurance as set forth in paragraph II of these ■findings, and that said William Sehassler exhibited evidence of said drinking at the time and place of said accident, and subsequent thereto, and that said facts were conclusively established within the provisions of said policy of automobile insurance by written statements signed and approved by said William Sehassler, and by statements of other persons having knowledge of such use of said intoxicating liquor.” The evidence supporting the foregoing findings consists of the testimony of Sehassler, who was called as a witness by plaintiffs, two written statements made and signed by him after the accident, and the stipulated testimony of a doctor. Sehassler’s testimony and written statements were to the effect that he had been drinking intoxicating liquor before the accident,