Western Casualty & Surety Co. v. Norman

• Decision Date: 27 May 1952
• Docket Number: No. 13468.,13468.
• Citation: 197 F.2d 67
• Parties: WESTERN CASUALTY & SURETY CO. v. NORMAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 67 (1952)

WESTERN CASUALTY & SURETY CO. v. NORMAN et al.

No. 13468.

United States Court of Appeals Fifth Circuit.

May 27, 1952.

Vardaman S. Dunn, Jackson, Miss., for appellant.

Floyd W. Cunningham, Booneville, Miss., Thomas Fite Paine, Aberdeen, Miss., for appellees.

Before HOLMES, BORAH, and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

The primary question presented by this appeal is whether the operation of an Oldsmobile automobile involved in a fatal collision was at the time within the coverage of a public liability policy issued by the appellant insurer. The correct answer depends upon whether the facts are sufficient to support the finding which the trial court made, that at the time of the collision the Oldsmobile was being used as a "Temporary Substitute Automobile" within the terms of the policy.¹ The trial court recognized that the factual situation was "very close" and that the question was a "close one". Our consideration of the evidence leads to the conclusion that the finding is clearly erroneous and should be set aside, because without sufficient factual support.

The policy named "Norman Concrete Works" as the insured and specifically covered two passenger cars and six trucks. One of the passenger cars was a 1941 Ford coach. Norman Concrete Works was a partnership composed of Morris Norman, J. D. (David) Norman, and Murray Duke. The firm was engaged in manufacturing concrete blocks and doing concrete work at Baldwyn, Mississippi, and also in road contracting work. One of the latter projects, and which was nearly completed at the time here involved, was work on a section of the Natchez Trace Parkway, near Kosciusko, Mississippi. The policy of insurance imposed no limitation of use of the vehicles to any particular location or to any activity of the firm.

The Oldsmobile car in question was the individual property of David Norman. He used it extensively in carrying on the business of the partnership, and to go back and forth from Kosciusko to his home at Baldwyn on weekends. These trips were combined business and pleasure. In using this car he secured gas from the firm's tank. He was not paid mileage, but was reimbursed for expenses. He knew he had no liability insurance on the car. The Oldsmobile had been operated a total of 43,000 miles in eight months, and from this appellant argues a demonstration that the car was constantly and continuously used in the business of Norman Concrete Works. In argument at bar appellee suggested such mileage might well result from the owner's age and status as an unmarried man.

On the critical date, the time of the fatal accident, David Norman, driving his Oldsmobile, had left Kosciusko to see about securing a job at Tchula, some 40 or 50 miles away. Lewis Bean, apparently for some purpose of his own, left with him as a passenger. On the trip the collision occurred and Bean was fatally injured. His widow and child thereafter instituted a suit for the homicide against the members of the partnership. It is this suit which these parties sought, in the proceeding here involved, to have the Casualty Company declared obligated to defend and discharge.

The contention of plaintiffs in the declaratory judgment proceeding was that the Oldsmobile was a substitute for the 1941 Ford. As to the 1941 Ford, the testimony is that it was left at the shop by David Norman a "couple of days" before the accident. Morris Norman was notified of this. The lights and brakes were bad. "Several days" after the accident the mechanic was instructed to repair it. The delay resulted because the sole mechanic was working on a drag line at...