Home Indemnity Company v. Godley

Pannell, Judge,

concurring specially. I concur in all divisions of the opinion and the judgment reached, with the exception of Division 2, with which I specially concur. The insured testified at one point that he was using his mother’s automobile, because she was using his automobile on a trip. He testified further that he was using his mother’s automobile and that his pick-up truck, which he could have used on this particular occasion, had a fiat tire or a tire that was almost flat. This last evidence was sufficient to authorize the jury to find that the mother’s automobile was being used "as a substitute for the owned automobile [the truck] when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.” While the testimony that he was using his mother’s automobile because she was using his automobile, while standing alone would not have supported a verdict that it was being used as a substitute automobile, this by no means makes the subsequent testimony conflict with the prior testimony. He did not testify that the sole reason for using his mother’s automobile on the occasion in question was merely because they had swapped automobiles. If he had so worded his testimony, there may have been a conflict, but here there is none.

I am authorized to state that Judges Deen and Quillian, join in this special concurrence.