W. I. Anderson & Co. v. American Mutual Liability Insurance ( 1937 )

Per Curiam.

As stated by tbe Court in its opinion on tbe former appeal herein, tbe rights of tbe parties in tbis controversy rest upon tbe identity of tbe truck being operated by plaintiff’s agent at tbe time of tbe collision out of which tbe claims for damages arose. Tbe jury, upon competent evidence, bas determined tbat tbe said truck was covered by tbe liability policy issued by tbe defendant. Tbat being true, tbe plaintiff is entitled to recover of tbe defendant tbe amount it was reasonably required to spend by virtue of tbe failure of tbe defendant to defend suits instituted against tbe plaintiff for damages growing out of tbe negligent operation of said truck. As stated by Clarkson, J., speaking for the Court on tbe former appeal: “If tbe car in tbe collision was CMC 2-T truck, 1927, Serial No. 50574, Motor No. 1991549, on which plaintiff bad liability insurance in defendant company, tbe matter of identification was for tbe jury to determine.” Tbe mere repair of tbe truck did not convert it into a new truck, nor did tbe change of tbe motor and serial numbers have tbat effect. Tbe identity of numbers merely constituted one method of identification. All of tbe evidence shows tbat tbis truck was GMC 2-T truck, 1927, owned by tbe plaintiff at tbe time of tbe issuance of tbe policy, and tbat it was tbe truck which was embraced in tbe schedule of cars and trucks covered by tbe policy.

Tbe plaintiff offered in evidence tbe original policy and only such riders or endorsements as it considered material. If it was error for tbe court to admit in evidence tbe policy without all tbe riders or endorsements, tbis error, if it be error, was later cured by admission of all of tbe riders.

In making out its case it was necessary for the plaintiff to show that it gave notice to the defendant of the claims made against it and to show that it was reasonably required to pay the amount claimed in settlement of the suits instituted against it. A number of the exceptions are directed to evidence to this effect. They cannot be sustained. ' Exception is likewise made to questions which were leading in their nature.. Whether such questions should be permitted rested within the sound discretion of the presiding judge.

We have examined all the other exceptions and assignments of error contained in the record and we can find in none of them sufficient merit to justify a new trial.

The jury has found by its verdict that the defendant insured the truck set out and described in the complaint, and that the plaintiff was reasonably required to expend the amount claimed by it herein in settlement of suits instituted for damages resulting from the negligent operation of the said truck. Under the verdict of the jury, judgment was properly rendered against the defendant.

In the record we find

No error.