Federated Mutual Implement & Hardware Ins. Co. v. Gupton

• Decision Date: 02 March 1966
• Docket Number: No. 10151.,10151.
• Citation: 357 F.2d 155
• Parties: FEDERATED MUTUAL IMPLEMENT AND HARDWARE INSURANCE COMPANY, a corporation, Appellant, v. George E. GUPTON, Jr., and Minnie Lou Williams, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

357 F.2d 155 (1966)

FEDERATED MUTUAL IMPLEMENT AND HARDWARE INSURANCE COMPANY, a corporation, Appellant, v. George E. GUPTON, Jr., and Minnie Lou Williams, Appellees.

No. 10151.

United States Court of Appeals Fourth Circuit.

Argued February 11, 1966.

Decided March 2, 1966.

Charles H. Gibbs, Charleston, S. C. (Sinkler, Gibbs & Simons, Charleston, S. C., on brief), for appellant.

Morris D. Rosen, Charleston, S. C. (Julian H. Toporek, Charleston, S. C., on brief), for appellee George E. Gupton, Jr.

Before HAYNSWORTH, Chief Judge, J. SPENCER BELL, Circuit Judge, and HUTCHESON, District Judge.

PER CURIAM.

We think the District Court properly concluded that the defendant Gupton was within the protection of the uninsured motorist endorsement of his employer's liability insurance policy.

Gupton, employed as an attendant in an automobile service station, drove his employer's pickup truck to deliver gasoline to a motorist who had run out of fuel. He parked the truck on the shoulder of the road behind the stalled vehicle, removed the can of gasoline from the truck, and then proceeded to empty the gasoline from the can into the tank of the automobile. While thus engaged, the lady motorist, who had summoned him, started up her engine, and, inexplicably, backed her car, pinning Gupton between its bumper and that of the pickup truck.

She, the motorist who caused the injury, had no insurance and, apparently, no other resources sufficent to cover Gupton's damages. Gupton, therefore, sought the benefits of the uninsured motorist endorsement upon his employer's liability insurance.

There is no question but that Gupton, in taking the pickup truck for the purpose of delivering the gasoline, was using the truck with the permission of his employer and in the regular course of his employment. It is conceded by the insurance company, in its action for a declaratory judgment, that if Gupton had not set the brake of the pickup truck when he parked it behind the stalled vehicle and the truck had rolled forward while Gupton was in the process of delivering the gasoline into the automobile's tank and had injured the lady motorist, Gupton "would have been using the pickup truck" within the meaning of the liability insurance coverage. It is contended, however, that the word "use" in the statute prescribing uninsured motorist coverage has a more restricted meaning.

Section 46-750.33 of the Code of Laws of South Carolina, 1962, requires that every automobile liability insurance policy contain an endorsement by which the insurance company undertakes to pay to the insured damages, up to $10,000, which he shall be entitled to recover from the owner or operator of an uninsured motor vehicle. By § 46-750.31 of the South Carolina Code of Laws, 1962, the term "insured" is defined as including, among others, one who "uses" the insured vehicle with the permission of the named insured. If, then, Gupton was "using" the pickup truck while actually engaged in the act of discharging the gasoline, he is entitled to the benefits of the endorsement.

Because the uninsured motorist endorsement in South Carolina is prescribed by statute and because it is agreed that the language of the statute rather...