Case v. Fidelity & Cas. Co. of New York

• Decision Date: 01 July 1964
• Citation: 105 N.H. 422,201 A.2d 897
• Parties: Hilda CASE v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.
• Court: New Hampshire Supreme Court

Page 897

201 A.2d 897

105 N.H. 422

Hilda CASE v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.

Supreme Court of New Hampshire.

Argued April 8, 1964.

Decided July 1, 1964.

Hall, Zellers, Morse & Gallagher, Concord (Mayland H. Morse, Jr., Concord, orally), for plaintiff.

Sulloway, Hollis, Godfrey & Soden and Charles F. Sheridan, Jr., Concord (Charles F. Sheridan, Jr., Concord, orally), for The Fidelity and Casualty Co. of New York.

Devine, Millimet, McDonough, Stahl & Branch, Manchester, for New Hampshire Fire Ins. Co., furnished no brief.

LAMPRON, Justice.

On December 20, 1960, a very cold morning, Hilda Case's car would not start. She called Pep's Service Station and her automobile was towed from her home to the station where it was determined that the starter was frozen and the battery very low. When informed of the condition of the battery, she asked Peppin to charge it to insure the start of her car when she left work that evening. She then drove out her car which had been backed into the south bay of the station and headed it into the same stall to within three or four feet of the wall so that the battery charger cables could reach the battery in her car.

After the charger had been connected to the battery for about twenty minutes, the plaintiff, who had been sitting in the office, came into the service part of the garage and asked Peppin how the battery was progressing. He advised her that she should take the car to the garage where she had recently purchased it for an adjustment as the battery could not be charged.

'I disconnected the battery charger cables from the battery. I then said to Mrs. Case to wait a minute, that I better check to see if the car would start before I put the charger away. At this time, Mrs. Case was standing on the north side of her car in what I call the alley between two cars in the garage. There was room to walk between the front of the Case car and the frame lift [a hoist which was between the front of her car and the wall] so I walked around to the left front door of the car. I got about 3/4 of the way into the car and turned the ignition key and * * * the engine started and the car lurched forward. I don't believe I had closed the hood and think it was still up. I turned the key off immediately, then started the car and backed off about three or four feet. I found Mrs. Case had gone around the front of the car and when the car lurched forward the car had pinned her left leg against the frame lift or hoist'.

The New Hampshire Company policy agreed to pay on behalf of Peppin, damages for bodily injury arising out of the 'ownership, maintenance or use of the premises for the purpose of * * * [a] repair shop, service station * * * and all operations necessary or incidental thereto'. We have been informed that this insurer has conceded, rightly in our opinion, the fact of coverage and applicability of its policy to this incident. It maintains however that its policy is subordinate to coverage by Fidelity and constitutes only excess protection.

Fidelity, by its policy issued to Hilda Case covering the automobile involved, agreed 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person * * * arising out of the ownership, maintenance or use of the owned automobile'. With respect to the owned automobile 'insureds' include '(1) the named insured and any resident of the same household, (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured'.

While conceding that Peppin was acting with permission of the named inured, Hilda Case, Fidelity takes the position that its policy affords protection to Peppin as an insured under the omnibus clause only if he is 'using such automobile'. It argues that a reasonable man in the position of the insured would understand those words to mean the affirmative employment of a vehicle for its vehicular qualities and maintains that Peppin's acts at the time of the accident did not constitute such a use.

This court did hold in Peerless Insurance Company v. Gould, 103 N.H. 134, 166 A.2d 462, as pointed out by Fidelity, that a reasonable man in the position of the policyholder would not understand a provision granting coverage for the occasional use for business purposes of an automobile owned by the insured to mean that it covered the use of the vehicle as an article of merchandise on display in the lot of a sales agency for used cars. Rather the insured would take the language to relate to the utilization of the automobile in the ordinary manner, that is, its use as a vehicle.

However we held in Carter v. Bergeron, 102 N.H. 464, 470, 160 A.2d 348, 353, 89 U.A.L.R.2d 142, that 'the words 'arising out of * * * use' are very broad, general and comprehensive terms.' In Eastern Transp. Co. v. Liberty Mut. Cas. Co., 101 N.H. 407, 144 A.2d 911, we decided that injuries sustained in a collision with a tractor-trailer stopped in the highway caused by its defective lighting equipment and other negligence could be found to have been caused by...