Kirchner Ex Rel. Western Assurance Co. v. Allied Contractors, Inc.

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment entered upon a motion for directed verdict in favor of the appellee, in an action against the appellee and others for damage to Kirchner’s truck sustained in a collision on September 19, 1952. The original declaration contained four counts. The first was against one William Byrd Nock, whose automobile collided with the Kirchner truck.

The court directed a verdict for Nock on the ground that there was no evidence of negligence as to him, and there was no appeal from that action. The second count was against Atlas GMC Sales & Service, Inc., wdio had the Kirchner truck for sale and permitted Allied to use it. Atlas pleaded both in tort and contract and a judgment was obtained against Atlas, from which no appeal was taken. The third count was against Allied and Hicks, its employee, alleging that Allied had agreed to insure the truck as a condition of its use, and that it was damaged by the negligence of Flicks.

The fourth count set up the subrogation rights of Western Assurance Company against all of the defendants. Hicks filed a general issue plea to the third count, that he did not commit the wrong alleged, and when the case came to trial a judgment was obtained against him, from which no ³⁴ appeal was taken. Allied, however, demurred to the count, in its name only, and the demurrer was sustained as to it, with leave to amend. An amended third count was filed against Allied and Hicks alleging that Kirchner, through his duly authorized representatives, permitted Allied to use the truck on condition that it would be at the risk of Allied, that Allied did use it, and while in such use and while being operated negligently by Hicks, the employee of Allied acting in the course of his employment, it was damaged; that “demand has been made upon said defendants for payment of said damage, but payment has been refused.” In response to demand, particulars were furnished alleging that Kirchner, through his agent, Atlas, advised Mr. Hennessey, of Allied, on September 16, 1952, of an agreement between Kirchner and Atlas, whereby Allied was to assume the risk of and arrange to insure the truck against damage by collision.

Allied then filed pleas that it did not promise as alleged, and never was indebted as alleged. It does not appear that Hicks pleaded to this count. During the course of the trial Allied objected to the introduction of evidence relative to the actual happening of the accident, on the ground that it was being sued in contract and not in tort, but the objection was overruled. It may be noted in this connection that all of the actions were tried together.

Kirchner testified that he delivered his truck to Atlas to sell for him on commission. He also turned over the title, unsigned. Some time later he was informed by Atlas that Allied was a prospective purchaser and wanted to try out the truck. Kirchner testified he told Mr. Hurwitz, of Atlas, “Anybody that takes that truck off of your lot positively must protect me completely in every way, shape and form by insurance.” He had insurance on it, placed while he was using it, with Western Assurance Company, who paid part of the loss under a deductible collision policy.

He had no contact with Allied until after the accident. Mr. Hennessey, of Allied, then told him “he called in a binder”, but that “you better get yourself a lawyer.” Hennessey testified he was instructed by Mr. O’Hara, the salesman for Atlas, to procure public liability and property damage insurance; nothing was ³⁵ said about collision insurance and none was obtained. The binder was issued in Allied’s name only. He never knew Kirchner; so far as he was concerned the truck belonged to Atlas.

Mr. Pécora, of Allied, testified that O’Hara told him that the truck belonged to Atlas, and gave him permission to try it out. He told Hennessey to place any insurance on the truck that O’Hara wanted. He never agreed to assume the risk on the truck. It was being used in Allied’s business, on a trial run, at the time of the accident.

Mr. Hurwitz died before the trial, and O’Hara did not testify. The appellant tried to offer in evidence a report signed by Hurwitz to Allied’s insurance company, but this was excluded on objection. Apparently this sought to place the blame for the failure to obtain collision insurance on Hennessey. The appellant does not contend that any express contract on the part of Allied was shown.

On the record, there is nothing to contradict the testimony of Hennessey and Pécora that they were never told that collision insurance was required, or that they must assume the risk of damage to the truck from collision. Yet the amended third count, as amplified by the particulars furnished, bases the action