PENNSYLVANIA THRESH. & F. MUT. CAS. INS. CO. v. Robertson

• Citation: 157 F. Supp. 405
• Decision Date: 21 December 1957
• Docket Number: Civ. No. 594.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: PENNSYLVANIA THRESHERMEN & FARMER'S MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff, v. Emily Ruth Messer ROBERTSON, David L. Robertson, and Ruth Dalton Messer, Defendants.

157 F. Supp. 405

PENNSYLVANIA THRESHERMEN & FARMER'S MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff, v. Emily Ruth Messer ROBERTSON, David L. Robertson, and Ruth Dalton Messer, Defendants.

Civ. No. 594.

United States District Court M. D. North Carolina, Winston Salem Division.

December 21, 1957.

Jordan, Wright & Henson, Greensboro, N. C., for plaintiff.

Archie Ellege, Clyde Randolph, Jr., I. E. Carlyle and Oren W. McClain, Winston Salem, N. C., for defendants.

HAYES, District Judge.

This is a suit by Pennsylvania Threshermen and Farmer's Mutual Casualty Insurance Company, the insurer, against Emily Ruth Messer (Robertson), the insured, and Mrs. Ruth Messer who sustained severe personal injuries in an accident in which a car owned by David L. Robertson was being driven by his newly wed wife, Emily Ruth Messer, for a declaratory judgment that the policy issued by the plaintiff to Emily Ruth Messer on her 1947 Dodge did not afford coverage for her against damages arising from her operation of her husband's 1951 Chevrolet.

Mrs. Ruth Messer obtained a default judgment against her daughter in the amount of $43,000 in an action which the plaintiff declined to defend for the insured because the insured refused to sign a non-waiver agreement. The insured notified the plaintiff she had been sued, that she was financially unable to defend, but the plaintiff elected not to defend her.

The policy in issue was in effect from March 21, 1953 to March 21, 1954, naming Emily Ruth Messer as the insured on her 1947 Dodge which she owned and used for business and pleasure. She was single when the policy was issued and resided with her mother at Bassett, Va. where she was employed as an office worker (bookkeeper and secretary). There were no other members of her household, but they had an apartment in her Uncle's home.

On June 23, 1953, the insured was married to David L. Robertson who resided at Winston Salem, N. C., where he was employed. Her husband owned the 1951 Chevrolet (the car subsequently involved in the accident), and they went away on their honeymoon in his car, returning to Bassett, Va., Sunday, July 12. They had not established any marital home (or place of abode). They had decided for the husband to locate a place at Winston so he could retain his job. She was required to give her employer 30 days notice and to train a new employee to do her work.

The insured told her husband that her car was giving trouble about over-heating. He had experience with motor vehicles, being a mechanic. It was the intention of the husband to go to Winston Sunday evening, to be ready and on his job Monday. Before leaving, he attempted to start his wife's car and found the battery was dead. He got a "hot shot" battery and started her car. It was agreed for him to drive her car to Winston Salem to charge the battery and to investigate and correct the motor on account of over-heating. He could not return until the week-end. He left his '51 Chevrolet for her and took her car to repair, fully expecting to return it to her on the week-end and get his car.

This plan was unexpectedly upset through circumstances beyond their control. The insured's father, a Veteran in the U. S. Hospital near Hampton, Va., became seriously ill and an urgent call came for her and her mother to visit him. She then phoned her husband still at Winston not to come to Bassett that week-end as she and her mother had to go to the bedside of her father who had become worse. She then drove his car to Hampton, 300 miles, on Saturday and returned to Bassett Sunday afternoon.

Mrs. Messer received a telephone call Tuesday afternoon that the doctors did not expect her husband to live and wanted her and her daughter to be with him. She called her daughter at her work. She hastened home and they left immediately for Hampton, Va. When they were a few miles beyond South Boston, Va., they came to wet black top highway where Mrs. Robertson lost control of her husband's car, completely wrecking it and sustaining severe injuries herself and very extensive severe and permanent injuries were sustained by Mrs. Messer.

She and her mother were taken to a hospital, both being unconscious and her father died Thursday.

The insured's husband never spent a night with his wife in Bassett. She finally moved to Winston with him and they established a home there sometime in August.

Since the car described in the policy was not involved, the plaintiff insists that there is no coverage. The defendants contend that the automobile involved is covered by Article IV and V of the policy. They are quoted below.¹

The facts here are quite different from the facts in any of the cases relied on by the plaintiff and particularly Aler v. Travelers Indemnity Co., D. C.Md., 92 F.Supp. 620 which is cited with approval in Campbell v. Aetna Casualty and Surety Co., 4 Cir., 211 F.2d 732 and Continental Casualty Co. v. Suttenfield, 5 Cir., 236 F.2d 433. Here the named car was unfit for the insured's normal use of the same. Repairs, shown by uncontradicted evidence, were required before she could make normal use of it. Had she placed it in a garage for such repairs and the accident had occurred while she was using temporarily a car furnished her by the garage, the policy would certainly apply. Does the fact that her husband, a mechanic, took it to repair and return it on the week-end and leaving her his car as a temporary substitute alter the result? He not only had difficulty to start it but had to have the car pushed off two or three times during the week before he got the battery recharged. He also repaired the car by removing the thermostat which was causing the motor to be over-heating. Indeed he made all the necessary repairs and would have returned it to her on the weekend except for the intervening unforeseen circumstances above set forth. She preferred to drive her own car instead of his. There was no evidence of an intention to exchange cars habitually or indiscriminately but all of the evidence points to the temporary use while her car could be restored to her normal use. The temporary character of the use here is indeed more convincing than was the use of the car in American Employer's Ins. Co. v. Maryland Casualty Co., 4 Cir., 218 F.2d 335, 337.

Judge Soper in the above case aptly stated: "When she (wife) was not using her car, Fountain (husband) occasionally used it on business of his own; but the use was occasional and not regular." Although the named car in the above case had been in a bad state of repair from August 1950 until the accident June 4, 1951, and the repair work was being done by the insured himself who drove the car on back roads, the court sustained a ruling that the car in the accident was a temporary substitute automobile. In that case the clause relating to a temporary substitute appears to be identical with the clause in the instant case.

It is contended by the plaintiff that the insured kept her husband's car and used it regularly as her own for approximately 10 days and that this use constitutes regular instead of temporary use. This might have been true had there been an intention to prolong indefinitely the exchange. The facts here negative such an intent. The substitution was temporary and with the definite intent to terminate it upon the return of the car at the week-end.

Having decided that Article IV covers the car involved in the accident, it is unnecessary to consider whether Article V applies. Some of the cases cited above deal with Article V. See also State Farm Mutual Automobile Ins. Co. v. James, 4 Cir., 80 F.2d 802, dealing with who is a member of the "household".

Next it is alleged that the insured violated section 1 of conditions by failing to give written notice of the accident to the company or one of its agents. The insured and her mother were first carried to the hospital in South Boston and then Mrs. Messer, because of her grave injuries, was moved to the hospital at Charlottesville, Va. Her condition was critical for several days. Mr. Messer died Thursday and Mrs. Robertson remained in the hospital at South Boston until Saturday when she left to attend her father's funeral. She left immediately for Charlottesville to see about her mother. She returned to Bassett the following Sunday and called plaintiff's agent and told him about the accident and he said he heard about the accident and told her the policy did not cover her husband's car. She asked him to prepare the papers as she lost her glasses and could not see. She never heard from him. Her testimony is corroborated by Attorney Mitchell who asked her about the insurance on September 19, 1953. She told him that the agent said the policy did not cover her husband's car.

An order of suspension was issued on September 10, 1953, notifying her that unless she was covered by insurance the order of suspension would become effective Oct. 19, 1953. On this account she consulted Attorney Mitchell and got him to prepare papers. This explains his specific inquiry about the...