Schippers v. State Farm Mutual Automobile Insurance , 30 Utah 2d 404 ( 1974 )

HENRIOD, Justice:

Appeal from a judgment entered by Judge Sorensen, who apparently was called in to preside at a jury trial to determine but one issue: Whether one Brown, who had collided with a car in which respondent Schippers was riding, and against whom the latter had obtained a judgment, was an “uninsured motorist” covered under a policy issued by State Farm to Schipper’s father, who had loaned his car to her and which she was driving at the time of the collision with Brown, and in which she was injured. The judgment is affirmed, except as to the interest awarded, which was computed at 8% from the date of Schipper’s judgment against Brown, but which, in our opinion, should have been computed from the date of judgment at said rate against defendant, State Farm, the date of judgment against the latter.

No costs on appeal are awarded against any of the parties, and the other points urged on appeal, other than the sole issue mentioned above, decided by the jury to the effect that Brown was an “uninsured motorist,” are rejected as being either untimely or unmeritorious.

The facts supporting plaintiff’s case, which were reasonably believable by the jury, indicate that she sought out defendant, State Farm, whose representatives denied liability, sending her to the Farmers Automobile Insurance Company for solace, saying the latter was on the risk, which latter said it was not, and that State Farm was, which latest latter again said it was not, — which, need we say more? Friendliness, empathy of the milk of human kindness were not legal or argumentative condiments here, nor phrases in the parchment of disclaimer which apparently were delivered her. Such circumstances well may have driven her to the courts, — with no necessity for return for fruitless debate, — and we think the appellant hardly can press with distinction its contention that plaintiff did not in writing pursue the fine print as to notice of claim that on more than one occasion verbally had been urged by plaintiff just as eloquently as had she made her plaint, perhaps in words lacking in conformity with the niceties of those used in the pitiless written word. We think that after having received the emphatic “no-noes” that the record reveals were given her as a supplicant, she need not have plainted further save in the courthouse.

It appears that without indulging the somewhat convincing arguments in this case anent who was “primary” on the risk, who was “excess” on the risk, who “failed” to give notice of rights under the provisions of a policy,- — -the jury, without hesitation, held in essence that the defendant, as a fact, was on the risk in this case under an “uninsured motorist” clause in its policy, — which Judge Sorensen affirmed, both of which conclusions we approve.

CALLISTER, C. J., and CROCKETT and TUCKETT, JJ., concur.