Caldwell v. Hartford Acc. & Indem. Co., 42891

• Court: Mississippi Supreme Court
• Writing for the Court: RODGERS; LEE
• Citation: Caldwell v. Hartford Acc. & Indem. Co., 160 So.2d 209, 248 Miss. 767 (Miss. 1964)
• Decision Date: 10 February 1964
• Docket Number: No. 42891,42891
• Parties: Sara P. CALDWELL, Executrix of Estate of J. H. Caldwell, Deceased, v. HARTFORD ACCIDENT & INDEMNITY COMPANY.

Page 209

160 So.2d 209

248 Miss. 767

Sara P. CALDWELL, Executrix of Estate of J. H. Caldwell, Deceased, v. HARTFORD ACCIDENT & INDEMNITY COMPANY.

No. 42891.

Supreme Court of Mississippi.

Feb. 10, 1964.

Ben M. Caldwell, Marks, Holcomb & Curtis, Clarksdale, for appellant.

Brewer, Brewer & Luckett, Semmes Luckett, Clarksdale, for appellee.

RODGERS, Justice.

Appellant filed suit in the First Circuit Court District of Tallahatchie County, Mississippi, against appellee. She alleged in her declaration that she is the executrix of the last will of her late husband, J. H. Caldwell; that during his lifetime he entered into an automobile liability insurance contract with the defendant insurance company under date of November 15, 1961, for a period of one year. The policy provided, among other things, that the insurance company would pay all sums for which the insured became legally liable, for injury to persons or property by reason of the ownership, maintenance and use of the automobile or use of a non-owned automobile covered by the terms of the contract. The plaintiff alleged that the policy provided that the insurance company would defend any suit against the insured, seeking damages payable under the policy even if such allegations are groundless.

The declaration alleges that the insurance policy states, among other things, that:

'1. Coverage A--Bodily Injury Liability; Coverage C--Property Damage Liability;

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

'Coverage A bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury' sustained by any person;

'Coverage C injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage'; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.'

'4. Definitions: Under Section 1: 'named insured' means the individual named in Item I of the declarations and also includes his spouse, if a resident of the same household; 'insured' means a person or organization described under 'Persons Insured' * * * 'owned automobile' means private passenger, farm or utility automobile or trailer owned by the named insured, and includes a temporary substitute automobile; 'temporary substitute automobile' means any automobile or trailer, not owned by the named insured, while temporarily used as a substitute for the owned automobile or trailer when withdrawn from the normal use because of its breakdown, repair, servicing, loss or destruction; 'non-owned automobile' means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile * * *'.

The amendment to the policy states: 'It is agreed: 1. That the definition of 'owned automobile' is amended to read: 'Owned Automobile' means (a) a private psssenger, farm or utility automobile described in the policy * * * and includes a temporary substitute automobile.'

The declaration alleges that on or about the 18th of June 1961, within the terms of the policy, J. H. Caldwell attempted to use his Oldsmobile, insured under the policy, but found that one of the tires was about flat. He then borrowed his wife's Chevrolet automobile to make the trip because his automobile was 'temporarily withdrawn from use.'

The insured made the trip in the substitute automobile belonging to his wife, and on his way back home he had an accident. Tom Bruce Winters was injured. The insured notified the insurer of the accident, and defendant sent an adjuster to investigate it and the adjuster advised the insured that the company was secondarily liable and that the insurance company would pay the excess over and above any liability, his wife's insurance carrier did not pay within the limits of their policy. On the basis of this statement by the adjuster, the defendant effected a tentative settlement on the other policy in which his wife was a joint-defendant.

The defendant insurance company thereafter declined to participate in the settlement of the litigation and the first suit against J. H. Caldwell, et al. was dismissed. Tom Bruce Winters filed his second suit against J. H. Caldwell in the sum of $150,000. The insured properly requested the defendant insurance company to furnish him with legal counsel, but defendant refused to defend the lawsuit and denied liability. The insured employed counsel and defended the suit, nevertheless a judgment was obtained against the insured, in favor of Tom Bruce Winters in the sum of $10,750, and the declaration alleges that the insured was forced to pay $750 over and above the amount paid by the carrier of the insurance on Mrs. J. H. Caldwell's car. The appellant alleges he was required to pay $2,500 attorney's fee to defend the suit brought against him, and that it was also necessary for him to expend the sum of $750 incident to the defense of these suits and incident to the prosecution of the present action. Judgment was sought in the total sum of $4,000.

The appellee filed a copy of the insurance policy as a part of, and attached to, the declaration which includes an amendment to the original policy, both dated November 13, 1960.

The appellee states in its brief that there was an amendment dated February 15, 1961, but there is nothing in the declaration to indicate that there was a second amendment to the policy.

It is alleged by the appellee, and admitted by the appellant, that the question to be determined by this appeal is whether or not the use of the automobile belonging to the insured's wife was a 'temporary substitute automobile' within the meaning of the policy.

The insurance company argues that since the automobile described in the policy was not the automobile used by Caldwell at the time of the accident, the policy did not cover the loss unless it was an automobile used as a 'temporary substitute' for the automobile described in the policy. The appellee points out that the policy defines the temporary substitute automobile as: "temporary substitute automobile' means any automobile or trailer, not owned by the named insured, while temporarily used as a substitute for the owned automobile or trailer when...