Opinion
Rehearing Denied May 4, 1971.
A. E. Radinsky, Denver, for plaintiffs in error.
William J. Madden and George J. Strate, Denver, for defendants in error.
COYTE, Judge.
This case has developed from an automobile accident occurring at 1:30 a.m., March 25, 1967. An automobile driven by the defendant Barbara Ann Fogleman, but owned by the defendant Jesse W. Briggs, collided with an automobile occupied by the plaintiffs. They initiated a suit against the defendants and obtained a default judgment for $16,250 on January 16, 1968. On April 4, 1968, a writ of garnishment was served naming the Northwestern Security Insurance Company as garnishee. The insurance company denied being indebted to the defendants. Plaintiff filed a traverse affirmatively alleging that the insurance company had issued an automobile liability policy on the automobile owned and driven by the defendants. A trial on the matter was set for September 9, 1968, and continued until April 25, 1969, upon motion of plaintiffs.
At this April 25, 1969, trial, the plaintiffs called one witness, the defendant Jesse W. Briggs. In essence he testified that the policy in question was purchased at 9:00 a.m., March 25, 1967, or seven and one-half hours after the accident had occurred. At the time, no mention of this fact was made to the insurance company agent. He also identified the application form which was filled out and signed by his daughter, as well as the agent for the company. The policy was dated March 25, 1967, and purported to cover the insured from 12:01 a.m. of that date until five months in the future.
Based upon testimony and evidence, the trial court found as fact that the policy had been purchased after the accident, and therefore concluded as a matter of law that the insurance company was not liable under the policy. Plaintiff has appealed, contesting both findings of fact and conclusions of law made below.
There are two broad areas of alleged error. First, plaintiffs urge that they were denied a fair trial on the issues, and that the trial court erred in denying their motion for a new trial. The second argument proceeds from the assumption that the trial court was correct in its findings of fact, but contends it erred in not finding the insurance company liable in light of 1965 Perm.Supp., C.R.S.1963, 13--7--37, et seq., commonly known as the Motor Vehicle Financial Responsibility Act.
I.
Addressing ourselves to the first argument, we do not find that the plaintiffs were denied a fair trial in this garnishment action.
On this point, it was first urged by plaintiffs that the defendant Briggs had perjured himself at this April 25, 1969, trial. To prove this, counsel for plaintiffs concealed a tape recorder on his person, and then saw Briggs at his home in May 1969. Plaintiffs contend that the tape recording made of this conversation proved perjury, and they offered it to the trial judge at the hearing on their motion for new trial, held July 7, 1969. Although he listened to the tape and questioned Briggs, the trial court denied the motion. Plaintiffs' argument is that this was reversible error since the tape proved conclusively that Briggs had deliberately perjured himself at this trial.
The issue at the April 25, 1969, trial was concerned with one simple question of fact, namely the actual time the policy was purchased. Briggs testified at trial that it was purchased at 9:00 a.m., March 25, 1967. The transcript of this recording supplied by plaintiffs does not show any inconsistencies with this testimony. In fact, at one point during the recorded conversation when plaintiffs' counsel attempted to have Briggs state that the policy was actually purchased the day before the accident, Briggs had emphatically stated, 'I know it was after the accident--I know it was. I didn't know it then, but I do know it now. It was afterwards. Hell, yes.' The trial court did not err in refusing to grant a new trial on these grounds because plaintiffs' evidence of perjury fails to prove that the witness lied at trial as to the time the policy was purchased. Other inconsistencies in this recording pointed to by plaintiffs are simply not relevant or material to the litigated issue, and therefore presented no cause to grant a new trial.
The second major premise on the issue of the fundamental fairness of this trial concerns the witnesses at trial. It is contended that the trial court refused to permit seven witnesses to testify who would have refuted the testimony of Briggs.
A close examination of the record does not support this contention. At the conclusion of Briggs' testimony, the court specifically asked counsel for plaintiffs if he had any further testimony to offer. When counsel said yes, the court asked counsel what it was. At that point, counsel requested a continuance to find two of Briggs' daughters in order to have them testify. The court denied this motion and entered its findings. What emerges from this is the fact that instead of having one of the seven waiting witnesses testify when offered the opportunity, counsel merely moved for a continuance in order to find two other witnesses. We conclude that counsel had opportunity to present his case and his failure to do so does not constitute error on the part of the trial court.
II.
It is argued that even if the findings of fact are correct, they are immaterial since under the Colorado Motor Vehicle Financial Responsibility law the insurance company cannot assert fraud in the inducement of this contract as a defense to plaintiffs' claim.
Plaintiffs' reliance on this act is unfounded, for by its terms it is applicable only to those motorists who must procure insurance in order to drive in the future. Safeco Insurance Co. v. Gonacha, 142 Colo. 170, 350 P.2d 189. The basic purpose of the statute is to provide protection to those third parties injured by such motorists, and therefore such defense of fraud in the inducement of the contract may not be used against the injured party.
Here, there is no evidence to show that the defendant Briggs or his daughter were covered by certified insurance, and therefore the Colorado Motor Vehicle Financial Responsibility law is not applicable, and the insurance company may raise any valid defenses it may have against the defendants, on this contract. Safeco, supra.
Plaintiffs also argue the insurer is estopped from denying liability on the grounds that it retained the premiums for nearly three years after the accident. This argument was not raised in plaintiffs' motion for new trial and for this reason shall not be considered upon appeal.
Finally, plaintiffs urge that the parol evidence rule was violated by allowing Briggs to testify as to the time the policy was purchased. The parol evidence rule is applicable only in those instances where oral testimony at trial would go to vary the written terms of the contract. Here, the testimony as to the time of purchase was not made to vary the terms of the written insurance contract, but was made for the purposes of proving that the policy was issued or sold on the basis of false and material misrepresentations, which from grounds for the avoidance of the contract by the insurer. Benson v. Bankers Life & Cas. Co., 147 Colo. 175, 362 P.2d 1039.
Judgment affirmed.
DWYER and PIERCE, JJ., concur.