Blackett v. Financial Indemnity Co. ( 1964 )

HENRIOD, Chief Justice.

Appeal from a judgment on pretrial that plaintiff was not covered by defendant insurer’s policy. Affirmed, with costs to defendants.

This case is based on the pleadings, the policy and a deposition of plaintiff.

According to the pleadings and briefs, this court is of the opinion that the trial court’s judgment is correct. The policy indicates that if the purchaser, Loder, was covered by another insurer at the time of loss, defendant insurer would not be liable because of a specific exclusion clause therein provided. Plaintiff was a trailer dealer, covered by defendant for trailers on hand or during delivery, except where a purchaser was covered personally by another insurer. On the date plaintiff started delivery of the trailer from Salt Lake City, the plaintiff demanded $100 from Loder for cost of delivery, which Loder paid, as he did the agreed purchase price under the contract, and he also at that time procured insurance on the trailer in another company foreign to the defendant Financial Indemnity.

Plaintiff gave Loder a replacement trailer, according to the trial court’s findings. We express no opinion as to Loder’s rights against his personal insurer if such replacement had not been effected, nor with respect to plaintiff’s rights against Loder’s insurer by way of subrogation or otherwise.

We believe that under the policy and facts reflected in the record, the intention of the parties appears to have been that title was to pass in Salt Lake City, not Arizona, and that plaintiff’s contention that there was a conditional sale until delivery in Arizona is without merit, and we so hold.

McDonough, callister, crock-ETT and WADE, JJ., concur.