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Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs (pre-1965) 1962 National Farmers Union Property and Casualty Co. v. Farmers Insurance Group and Farmers Insurance Exchange : Appellant's Reply Brief Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/uofu_sc1 Part of the Law Commons Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the Institute of Museum and Library Services through the Library Services and Technology Act, administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine- generated OCR, may contain errors. Hanson & Garrett; Don J. Hanson; Attorneys for Defendants and Respondents; Kipp & Charlier; D. Gary Christian; Attorney for Plaintiff nda Appellant; Recommended Citation Reply Brief, National Farmers Union Property and Casualty Co. v. Farmers Insurance Group, No. 9625 (Utah Supreme Court, 1962). https://digitalcommons.law.byu.edu/uofu_sc1/4015 This Reply Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (pre-1965) by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. IN THE SUPREME COURT OF THE STATE O·F UTAH NATIONAL FARMERS UNION L E ~~ PROPERTY AND GASUALT~ , . lJ COMPANY, ~~ 06'2. Pla~'vntiff and Appellant, c.r: P 1 r· t.; · · ·· Case FARMERS INS~~ANCE GROup-------;;~::-'. ~9:; 9 ~25-r, lit~:-~---·-~ and FARMERS INSURANCE EXCHANGE, Defendants and Respondents. ~ APPELLANT'S REPLY BRIEF APPEAL F·ROM THE JUDGMENT OF THE THIRD JUDICIAL DIS'TRICT· COURT FOR SALT L·AKE COUNTY, STATE OF UTAH Honorable A. H. Ellett, District Judge KIPP AND CHARLIER D. GARY CHRISTIAN, Esq. 516 Boston Building Salt Lake City, Utah Attorney for Plaint~!! and Appellant HANSON AND GARRET'T DoN J. HANsoN, Esq. 623 Continental Bank Building Salt Lake City, Utah Attorney for Defendants and Respondents Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS Page STATEMENT OF FACTS.......................................................................... 2 RELIEF SOUGHT ...................................................................................... 2 ARGUMENT: POINT I.- THE CONTENTION EXPRESSED BY DEFENDANT AND RESPONDENT, FARMERS INSURANCE EX­ CHANGE, IN POINT I. OF RESPONDENT'S BRIEF THAT THE AUTOMOBILE DRIVEN BY JOHN H. MOR.: GAN, JR., WAS BEING USED IN THE AUTOMOBILE BUSINESS AND, THEREFORE, WAS NOT COVERED BY THE DEFENDANT'S POLICY IS NOT BEFORE THE COURT ON APPEAL AND THEREFORE, NOT PROPERLY PART OF RESPONDENT'S BRIEF........................ 2 POINT II.- THE AUTOMOBILE DRIVEN BY JOHN H. MORGAN, JR., WAS NOT BEING USED IN THE AUTOMOBILE BUSINESS AND, THEREFORE, WAS COVERED BY DEFENDANT'S POLICY ·····························································-··· 4 CONCLUSION .............................................................................................. 18 Statutes Cited Rule 74 (b) Utah Rules of Civil Procedure.............................................. 3 Rule 75 (d) Utah Rules of Civil Procedure.............................................. 3 Annotations Cited 47 ALR 2d 556 - 567 ...................................................................................... 16 71 ALR 2d 964................................................................................................ 16 Cases Cited Canadian Indemnity Company vs. National Insurance Company, 134 Cal. App. 2d 512, 286 P. 2d 532 (1955) .................................... 17 Chavers vs. St. Paul Fire and Marine Insurance Company, 188 F. Supp. 39 (U. S. D. C. Ohio, 1960) ........................................ 14 Cherot vs. United States Fidelity and Guaranty Company and Central Surety and Insurance Company, 264 F. 2d 767 (lOth Cir., Okla., 1959) 71 ALR 2d 859.................................................. 6 Commercial Standard Insurance Company vs. Sanders, 326 S.W. 2d 298 (Tex. Cir. App., 1959) ............................................ 13 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. TABLE OF CONTENTS- (Continued) Page Employers' Mutual Casualty Company of Des Moines, Iowa, vs. Federated Mutual Implement and Hardware Company, 213 F. 2d 421 (8th Cir., N.D., 1954)----··································-················ 11 LeFelt vs. Nasarow, 177 A. 2d 315 (N.J. Super.) ...................... ·-······· 16 Lubow vs. Morressey, 108 N.W. 2d 156 (Wis. 1961) ............................ 9 McCree vs. Jenning, 155 Wash. 798, 349 P. 2d 1071.. ........ ·-············-··· 15 Piliero vs. Allstate Insurance Company, 12 App. Div. 2d 130, 209 N.Y.S. 2d 90 (1960) ...........................................--···-··-···-··········· 15 Stephanelli vs. Yuhas, 135 Pa. Super. 573, 7 A. 2d 124 (1939) ........ 10 West Michigan Dock & Market Corporation vs. St. Paul-Mer- cury Indemnity Company, 82 F. Supp. 403 (U. S. D. C., Mich., 1949) affirmed without opinion 179 F. 2d 242 (6th Cir.) ... 15 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. IN THE SUPREME COURT OF THE STATE OF UTAH NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Plailntiff and Appellant, vs. Case No. 9625 FARMERS INSURANCE GROUP and FARMERS INSURANCE EXCHANGE, Defendants,a;nd Respondents. APPELLANT'S REP'LY BRIEF Plaintiff and appellant, National Farmers Union Property and Casualty Company, submi,ts herewith its brief in reply to defendant and respondents contention as set forth in Point I of Respondent's Brief as follows : The automobile driven by John H. Morgan, Jr. was being used in the autmnobile business and, ~therefore, was not covered by the defendant's policy. The nature of the case and the disposition thereof in the lower court are set out in borth appellant's and respondent's briefs. 1 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. RELIEF SOUGIIT Plaintiff and appellant seeks to have the Supreme Court.: A. Strike Point I of Respondent's Brief and the argument relating thereto, or B. Sustain the finding and conclusion of the Trial Court on the question dealt with in Point I of Respondent's Brief. STATEMENT OF FACTS The facts are adequately set forth both in Appel­ lant's Brief and Respondent's Brief on the question covered by this Reply Brief. ARGUl\1:ENT POINT I THE CONTENTION EXPRESSED BY DEFENDANT AND RESPONDENT, FARMERS INSURANCE EX·CHANGE, IN POINT I OF RESPONDENT'S BRIEF THAT THE AUTO· MOBILE DRIVEN BY JOHN H. MORGAN, JR., WAS BEING USED IN THE AUTOMOBILE BUSINESS AND, THERE­ FORE, WAS NOT COVERED BY THE DEFENDANT'S POLICY IS NOT BEFORE THE COURT ON APPEAL AND THEREFORE, NOT PROPERLY PART OF RESPONDENT'S BRIEF. The facts relating to the use of the loaned automobile and the accident which subsequently occurred were sub­ mitted to the trial court upon stipulation between counsel for plaintiff and defendant ( Tr. 1, :2) and upon hearing 2 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors. the facts and argtillll'nt the trial court held. that the loaned auton10bile was not being used in the automobile business at the tiine of the accident (Tr. 8, 9). Paragraph 1 of the Conclusions of Law (part of the record in this matter) reflects this finding by the Court. Inasmuch as it was found as a 1natter of fact and concluded as a matter of law by the trial court that the use of the automobile by Mr. Morgan was not a use in the automobile business and this finding and conclusion was in favor of plaintiff and against defendant, plaintiff made no appeal fron1 that part of the judg~nent. Appel­ lant's appeal was taken from the judgment entered in favor of defendant and against plaintiff and upon all ques·tions of law and fact upon the whole record in this cause as it relates to that judgment. It is not the desire of appellant to have matters reviewed on appeal ~that have been resolved in its favor at trial. Nor was the matter of use of the automobile in the automobile business dealt with in appellant's brief. Notwithstanding, respondent did not prosecute a cross-appeal to have this matter reviewed on appeal as it was entitled to do and as provided for in Rules 75 (d) and 74 (b), Utah Rules of Civil Procedure; nor does respondent seek to have the mrutter of use of the auto­ mobile reviewed on appeal for any justifiable reason since the trial court concluded as a matter of law that the automobile was not being so used when the aceident occurred (R. 41) and respondent seeks to have the judg- 3 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services

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