Campbell v. Aetna Casualty and Surety Co., 6711.
| Decision Date | 16 March 1954 |
| Docket Number | No. 6711.,6711. |
| Citation | 211 F.2d 732 |
| Parties | CAMPBELL et al. v. AETNA CASUALTY AND SURETY CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
A. G. Stone, Charleston, W. Va. (Harry B. Lambert, Donald O. Blagg, Koontz & Koontz, Rummel, Blagg & Stone, Charleston, W. Va., on the brief), for Harold E. Campbell and William E. Campbell.
J. Campbell Palmer, III, Robert L. Elkins, Charleston, W. Va., for Aetna Casualty & Surety Co.
Robert W. Lawson, Jr., Charleston, W. Va. (Steptoe & Johnson, Clarksburg, W. Va., and Wilbert E. McInerney, Washington, D. C., on the brief), for Car & General Ins. Corp.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This suit was brought by Aetna Casualty and Surety Company for a declaratory judgment to determine whether it has any liability under a policy of automobile insurance issued by it to Harold E. Campbell who was a participant in a collision between two automobiles on January 10, 1952 whereby personal injuries and property damage were inflicted. The policy insured against liability for claims arising out of the operation of a 1947 DeSoto Suburban automobile belonging to the insured limited in amount to $100,000 for injury to each person, $300,000 for each accident and $25,000 for property damage. The defendants in the suit are Harold E. Campbell, the insured, his son, William E. Campbell, Frank Kranak, Jr., who was injured while driving the other colliding car, and Car and General Insurance Corporation, Ltd., a New York corporation, which had issued one or more automobile policies to William E. Campbell who was found to be the owner of the car driven by his father in the collision. The suit was precipitated by a suit instituted on January 15, 1952 by Kranak against the two Campbells in Washington County, Pennsylvania. Kranak refused to come into the instant suit and the case proceeded to hearing against the other defendants.
A second automobile policy issued by Aetna to the father was brought into the case by his answer to the complaint in which he claimed that if he was not protected by the first policy he was protected by the second. The second policy insured against liability for claims arising out of the operation of a 1947 Ford Vanette one and a half ton truck which the father used in his occupation of regional field supervisor in charge of the sale and distribution of merchandise for the Snap-On Tools Company.
Neither of these Aetna policies related to the car driven by the father at the time of the collision which was a 1951 DeSoto 4-door sedan and is hereafter referred to as the "collision car". It is nevertheless contended that the father was protected while driving this car at the time of the accident by certain provisions in the Aetna policies.
The collision car was bought by the son on November 10, 1951 and it is contended by the Campbells that it was transferred by the son to the father on December 17, 1951, less than thirty days before the accident on January 10, 1952. Hence it is said that the father was protected by the Newly Acquired Automobile clause1 of the Aetna policy on the father's Suburban car which provides in effect that if the named assured, who is the owner of the car described in the policy, acquires another automobile and notifies the Insurance Company within thirty days of its delivery to him, it replaces the car described in the policy.
Whether the collision car was transferred to the father by the son prior to the accident is a hotly disputed issue in the case. The District Judge carefully considered the evidence relating to the transfer of the collision car from the son to the father and reached the conclusion that the transfer did not take place and that the car belonged to the son at the time of the collision. The transactions between the father and the son, and between them and the insurance companies in regard to a number of automobiles were numerous and complicated.2 They included not only the collision car but also the Suburban DeSoto of the father covered by the Aetna policy which the son traded in with his father's consent for a 1951 DeSoto Sportsman car on November 10, 1951. As the result of these transactions the father on December 17, 1951 gave up all title to the Suburban car which he had previously used for his private as distinguished from his business purposes, and in place thereof acquired possession and thereafter regularly used the collision car from November 10, 1951 to the day of the collision.
The judge rejected as incredible the testimony tending to show that the son, who was in straitened financial circumstances, swapped his nearly new 1951 DeSoto sedan, valued at $2,300 at the time of the collision, for his father's 1947 Suburban automobile which was worth only $1,100 for trade-in purposes. The judge's finding was supported by several written statements made by the father after the collision indicating that the collision car belonged to the son, and by the fact that the son collected the insurance money on the collision car and applied it to the payment of a balance due on his Sportsman car. The judge rejected the story that the son gave his father a promissory note for the money so used. We accept the judge's findings as they are fully supported by the evidence.
It follows from these findings that between December 17, 1951 and January 10, 1952 the father owned no car to which the Aetna Suburban automobile policy related. If he had become the owner of the collision car on that date he could have availed himself of the Newly Acquired Automobile provision of the policy on the Suburban car and would have been covered for thirty days after delivery; but since he did not acquire this car the described provision of the policy did not come into effect. The father had paid the premium on the Aetna Suburban policy for the year beginning September 17, 1951 and it follows from the above finding of fact that after December 17, 1951, when he transferred the car, until February 7, 1952, when the insurance was transferred to a new car purchased by him after the accident, he had no car to which the policy could attach. This circumstance, however, is immaterial with respect to the point now under consideration. It might give rise to a claim on the part of the insured for the return to him of the amount of the unearned premium; but it cannot extend the provisions of the policy to a situation to which they did not relate.3
The father makes the alternative contention that he was protected by the Use of Other Automobiles provision which is found in both Aetna policies and states in effect that if the named insured owns the automobile classified in the policy as "pleasure and business" the insurance afforded by the policy applies with respect to any other automobile but does not apply to any automobile "furnished for regular use to the named insured."4 It will be noted that the privilege of this clause is also limited to an insured who owns the automobile described in the policy and therefore the Aetna Suburban policy would afford no protection in this respect to the insured. It is admitted, however, that the father did own the Ford Vanette truck at the time of the accident, and hence, so far as ownership is concerned, the father would be entitled to the benefit of the clause if it be assumed that the policy on the truck covered the vehicle for pleasure and business, and not for commercial purposes only. This is a disputed point in the case which the judge resolved in favor of the Insurance Company. It is, however, not necessary to consider the point on this appeal for in any event the provision does not apply to any automobile furnished for regular use to the named insured. The evidence shows plainly that the father received possession of the collision car for his regular use when he gave up possession of the Suburban car to his son on November 10, 1951, followed in the next month by a complete transfer of the paper title. From November 10, 1951 until the day of the collision, the father had no other car for the personal use of himself and his family. He used the truck for business purposes and the collision car took the place of his old Suburban.
The great weight of authority is in accord with the interpretation of this provision by Judge Chesnut in Aler v. Travelers Indemnity Co., D.C.Md., 92 F.Supp. 620, 623, where he said:
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