Pennsylvania T. & F. Mut. Cas. Ins. Co. v. Robertson

• Decision Date: 06 October 1958
• Docket Number: No. 7628.,7628.
• Parties: PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, Appellant and Cross-Appellee, v. Emily Ruth Messer ROBERTSON and David L. Robertson, Appellees, and Ruth Dalton Messer, Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

259 F.2d 389 (1958)

PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, Appellant and Cross-Appellee, v. Emily Ruth Messer ROBERTSON and David L. Robertson, Appellees, and Ruth Dalton Messer, Appellee and Cross-Appellant.

No. 7628.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1958.

Decided October 6, 1958.

Welch Jordan, Greensboro, N. C. (Perry C. Henson, and Jordan, Wright & Henson, Greensboro, N. C., on brief), for appellant and cross-appellee.

Clyde C. Randolph, Jr., and Charles F. Vance, Jr., Winston-Salem, N. C. (Archie Elledge, and Irving E. Carlyle, Winston-Salem, N. C., on brief), for appelless and cross-appellant.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company seeks a declaratory judgment that it has no liability under an automobile insurance policy on a 1947 Dodge Coupé issued by it to Emily Messer Robertson on account of serious permanent injuries suffered by her mother, Ruth D. Messer, when the daughter was driving a Chevrolet car belonging to her husband, David L. Robertson, and it skidded and ran off the road and collided with a tree. The mother secured a judgment in a state court of North Carolina for $43,000 against her daughter for negligence and it is now claimed, and the District Judge held, that the Insurance Company is bound to pay on account of the judgment the sum of $25,000, the limit of its liability under the policy, because of provisions therein whereby coverage is extended to an automobile temporarily used by the insured as a substitute for the automobile described in the contract. Insuring agreement IV(3) of the policy is as follows:

"Temporary Substitute Automobile — under coverages A, B and C, an automobile now owned by the named insured while temporarily used as the substitute for the described automobile while withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;"

An additional contention of the policyholder is that the insurance company is liable under insuring agreement V of the policy relating to the use of other automobiles, which is as follows:

"V. Use of Other Automobiles

"If the named insured is an individual who owns the automobile classified as `pleasure and business\' or husband and wife either or both of whom own said automobile, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to said automobile applies with respect to any other automobile, subject to the following provisions: * * *".

The accident happened on July 21, 1953. The mother's suit against the daughter was brought nearly three years later, on June 13, 1956. The Insurance Company was notified of the suit and offered to undertake the defense with the understanding that it did not waive any of its rights to claim non-coverage or forfeiture of the policy. Mrs. Robertson refused this offer and thereupon the company declined to defend the suit. No answer was filed by Mrs. Robertson and a default judgment for $43,000 was entered against her on October 26, 1956. Meanwhile, the pending suit for a declaratory judgment was filed.

In order to determine whether the insured was covered by the provisions of agreement IV(3) of the policy in respect to a temporary substitute automobile, we first set out the circumstances which led her to make use of her husband's car on the date of the accident. Before her marriage Mrs. Robertson lived with her mother and was employed at Bassett, Virginia. She had been accustomed to drive her Dodge Coupé, the car described in the policy, to and from her place of employment. On June 27, 1953, she married David L. Robertson, who worked for a plumbing and heating contractor at Winston-Salem, North Carolina. He owned a 1951 Chevrolet automobile. After the marriage the couple went on a wedding trip and returned on Sunday, July 12, to the bride's home in Bassett. They planned for her to remain in Bassett until she could give her employer thirty days' notice and train her successor and that her husband should return to Winston-Salem and find a place where they could establish a home. Prior to the marriage Mrs. Robertson's car had been giving trouble due to overheating and excessive smoking of the exhaust and on the return from the wedding trip it was found that the battery was dead and the car could not be started. It was then arranged that Mr. Robertson should leave his car at Bassett for his wife's use during the following week and that he should take her car to Winston-Salem and repair it, after starting it with a hot shot battery. Although Mr. Robertson was not in the automobile business he had worked in a garage and had considerable mechanical skill.

This plan was not carried out. Mrs. Robertson used his car during the ensuing week just as she had used her own before her marriage. He drove her car to Winston-Salem on Sunday afternoon and experienced no difficulty on the way except the overheating of the water in the radiator. During the next two days he was able to correct the overheating of the car by making certain mechanical changes. He did not attempt to remedy the trouble with the exhaust, not having sufficient mechanical ability for this purpose, but he used the car throughout the week to drive to and from his work. Once or twice the car had to be pushed off because the battery was weak but the battery was gradually built up by the generator in driving and by the end of the week the car was in normal use.

It had been arranged by the couple that Mr. Robertson would return the car to his wife on Saturday, July 18, and resume the use of his own car, but the plan fell through because her father, who was a patient in the Veterans' Hospital at Hampton, Virginia, three hundred miles distant from Bassett, took a serious turn for the worse and his wife and daughter went to visit him. It was therefore agreed that the couple would continue to use each other's car until the following Saturday, July 25. Meanwhile, word was received that Mrs. Robertson's father was dying and on July 21, a second trip to the hospital was undertaken in the husband's car, during which the accident happened and the husband's car was destroyed. The injured women were taken to the hospital at South Boston, Virginia. Mr. Robertson was notified of the accident on the night of July 21, and immediately drove his...