Opinion
No. 9831.
June 28, 1963.
Appeal from the Third District Court, Salt Lake County, A.H. Ellett, J.
George K. Fadel, Bountiful, for appellant.
Kipp Charlier, Salt Lake City, for respondent.
Appeal from a no cause of action judgment at pretrial where the parties stipulated that Mann's deposition was the only evidence in the case. Affirmed. Costs to defendant.
Plaintiff had a policy that provided two things germane to this case: 1) To pay for damage arising out of operation of the insured's car or "any nonowned automobile" which means 2) "an automobile * * not owned or furnished for the regular use of the * * * insured, * * * other than a temporary substitute automobile."
The conceded evidence showed that plaintiff used his cousin's truck to haul hay for the latter's horses, and to go to work whenever he wished. He had access to the truck at times when it was not being utilized by his cousin, the key being left in the ashtray for his use. This custom had persisted for at least 6 months to a year, and plaintiff's insured car was available at this time for himself and/or his wife.
We think the quoted excerpts from the plaintiff's policy were designed to protect him at times when, for some reason or another, his own insured car was inoperable, and further, that reflective of his own statements in the deposition, his use of the truck either was a "regular" use or one to benefit someone else than himself, which, on either basis, would not lead to insurability of his own car or person under the plain implications of the policy even conceding its terms construable more favorably to the assured.
McDONOUGH, CALLISTER, CROCKETT and WADE, JJ., concur.