Moral Insurance Company v. Fechtel

280 P.2d 716 (1955)

MORAL INSURANCE COMPANY, Plaintiff in Error,
v.
William Alexander FECHTEL and Hazel Fechtel, Defendants in Error.

No. 36352.

Supreme Court of Oklahoma.

March 1, 1955.

John A. Cochran, Tulsa, for plaintiff in error.

Ivy, Ivy & Ivy, Waurika, for defendants in error.

WELCH, Justice.

The Fetchels (defendants in error here) sued and recovered separate judgments against Leona Roof for damages for personal injuries received in an automobile collision in February, 1952. They were unable to collect from Roof and thereupon (in aid of execution) garnished Moral Insurance Company which had issued a public liability policy to Roof.

Moral admitted issuing the policy to Roof in May, 1951, which by its terms would extend to May, 1952. Moral denied the policy was in force in February, 1952, contending there was vitiating fraud on the part of Roof in representations made to obtain the policy.

This defense was not sustained by Moral and the trial court rendered judgment in favor of each of the two Fetchels for the respective amounts of their judgments against Roof, being within the amount limits of the Moral Liability Policy.

Moral contends there was error in denying its offer to prove declarations or statements made by Roof to an official of Moral, after the policy was issued and after this car collision, which amounted to declaration against her interest. Moral contends such statements were erroneously held to be hearsay by the trial court. The record does not show any proper or sufficient attempt by Moral to obtain the presence or deposition of Roof for the trial. In 20 Amer.Juris.Evidence, Sec. 556 the general rule is stated that declarations against interest are not admissible if the declarant is available as a witness. We find no merit in this contention.

The court does not deem it necessary to make any further detailed statement of the questions of law and facts involved, and deems the foregoing to be sufficient for an opinion disposing of this appeal. See Gulf, C. & S.F. Ry. Co. v. Kellum, Okla., 261 P.2d 610; S.L. 1953, Chapter 15, § 1; 12 O.S.Supp. § 976, and In re Initiative Petition No. 253, State Question No. 357, Okl., 268 P.2d 844.

The judgment appealed from is affirmed.

It is ordered and adjudged that the plaintiffs have judgment upon the supersedeas bond against the principal and surety therein named in the amount of the two judgments appealed from; that this judgment on supersedeas bond be entered in the trial court and there enforced as if rendered in that court.

JOHNSON, C.J., WILLIAMS, V.C.J., and CORN, DAVISON, ARNOLD, HALLEY and JACKSON, JJ., concur.

BLACKBIRD, J., concurs in conclusion.