Coletrain v. Coletrain

• Decision Date: 25 July 1961
• Docket Number: No. 17809,17809
• Court: South Carolina Supreme Court
• Parties: Martha COLETRAIN, Respondent, v. Mack COLETRAIN and Canal Insurance Company, Defendants, of whom Canal Insurance Company, is Appellant.

Page 89

121 S.E.2d 89

238 S.C. 555

Martha COLETRAIN, Respondent, v. Mack COLETRAIN and Canal Insurance Company, Defendants, of

whom Canal Insurance Company, is Appellant.

No. 17809.

Supreme Court of South Carolina.

July 25, 1961.

Wright, Scott, Blackwell & Powers, Florence, for appellant.

McEachin, Townsend & Zeigler, Florence, for respondent.

TAYLOR, Chief Justice.

This appeal is from an Order of the County Court of Florence County overruling defendant Canal Insurance Company's demurrer.

The complaint sets forth that pursuant to the ordinance of the City of Florence requiring liability insurance on taxicabs for bodily injury arising out of the negligent operation of such taxicabs, the defendant insurance company issued its policy of automobile liability insurance, wherein it insured one Foster Matthews and any person while using the automobile described in the policy with the insured's consent against bodily injury arising out of the ownership, maintenance, or use of the said automobile. The complaint further alleges that in November, 1959, plaintiff was riding in the insured automobile with her husband, Mack Coletrain, said car being driven by Foster Matthews, the named insured; that while in the act of alighting from such taxicab, and while using said taxicab, her husband negligently closed the door on plaintiff's hand causing severe injuries for which she seeks damages in the amount of $5,000, actual and punitive. Upon hearing thereof, however, the parties agreed to withdraw any claim for punitive damages; and the only question before the Court at the time of hearing was whether the language of the policy of insurance in question may be construed to afford coverage under the circumstances.

The policy in question covered the named insured, Foster Matthews; and under the provision of the policy defining the insured, it is stated that such term includes any person while using the automobile with the permission of the named insured, the express language being:

'* * * (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * *'

The bodily injury portion of the policy agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damage because of bodily injury caused by accidents arising out of ownership, maintenance or use of the automobile. The question, therefore, is whether the using of a door of the taxicab to alight therefrom by a passenger constitutes a use of the insured vehicle within the terms of the policy.

The word 'use' is defined in Webster's New International Dictionary as 'To put into operation, to cause to function; * * * to act with regard to; * * * act of employing anything, * * *'

In Fidelity and Casualty Company of New York v. Lott, et al., 5 Cir., 273 F.2d 500, 502, an injury and death caused by the negligent discharge of a rifle where the automobile was being used as a gun rest was held to constitute a use of the automobile within the phrase 'caused by accident and arising out of the ownership, maintenance or use of the automobile.' With respect to the contention, as here, that the use contemplated by the policy was that of driving or operating the automobile, the Court stated:

'* * * It is unquestionably true that in the ordinary sense of the words Miller's death was 'caused by accident * * * arising out of the * * * use of the automobile.'

* * *

* * *

'Even were we to conclude that the terms used by the insurance company to spell out its liability were susceptible of more than the simple meaning we have already indicated, this would, of course, be of no benefit to the appellant. This is so because all must agree that one perfectly permissible construction of the words would be such as would comprehend the acts resulting in this injury. Thus, there would come into play the rule which appellant recognizes as applicable in Texas (as in South Carolina): That if the language of an insurance policy admits of more than one construction, that most favorable to the insured must be adopted, * * *'

The omnibus clause of a policy of insurance may be put into operation expressly or by implication, but in either case, it must originate in the language or conduct of the named insured or by someone having authority to bind him in that respect. Rakestraw v. Allstate Insurance Co., S.C., 119 S.E.2d 746, and Eagle Fire Company of New York v. Mullins et al., S.C., 120 S.E.2d 1.

Martha Coletrain and Mack Coletrain were using and occupying, as passengers, the taxicab of Foster Matthews, the insured. They were being transported from one place in the city of Florence to another. The question arises as to whether Mack Coletrain became an additional insured, under the omnibus clause of the insurance policy issued to Foster Matthews, and whether the insurer was responsible for his acts where he was using the taxicab with the admitted permission of the named insured.

The case of Bolton v. North River Insurance Company, La.App., 102 So.2d 544, 547, is very similar to the case under consideration. In such case, plaintiff appealed from a judgment of the District Court holding that no cause of action was stated against the insurer for the recovery of damages for personal injuries allegedly caused when a passenger in the back seat of the insured automobile slammed the back door thereof on the plaintiff's left hand while she was standing on the outside of said automobile with her hands thereon. It appears that the insurance policy issued by the insurer obligated it to pay on behalf of the insured, and on behalf of any person using and operating such vehicle with the permission of the insured, all sums which the insured might become obligated to pay by reason of liability imposed by law for damages caused by or arising out of the ownership, maintenance or use of said automobile. The complaint alleged that plaintiff was standing outside of the automobile with her hands on a portion thereof, and that Don Bolton, a passenger in the back seat of the said automobile, slammed the back door thereof, which was standing ajar, on the plaintiff's left hand. The Court of Appeals of Louisiana, in reversing and remanding the case for trial, said:

'In stating that the defendant would be responsible under the omnibus clause of the policy for the negligent act or acts of the passenger, Don Bolton, which might be established on the trial of the case as a proximate cause of the injury and damage to [the] plaintiff, we are agreeing with the contention of counsel for plaintiff that Don Bolton at the time was 'using' the motor vehicle under the liberal interpretation required of such clauses in an insurance policy, Pullen v. Employers' Liability Assurance Corp., 230 La. 897, 89 So.2d 373; Spurlock v. Boyce-Harvey Machinery, Inc., La.App., 90 So.2d 417, 422. Also 45 C.J.S. Insurance, § 829, p. 902. 'The use contemplated in a provision for coverage while an automobile is used with the owner's consent generally is regarded as not limited to physical operation or driving.' Also Sec. 4316(e), 7 Appleman, 'Insurance Law and Practice' pp. 84-85, as supplemented by 1958 pocket part, pg. 25, wherein it states: 'The term 'use' is the general catchall of the insuring clause, designed and construed to include all proper uses of the vehicle not falling within one of the previous terms of definition * * *. A person clearly could be using an automobile without operating it personally. So long as 'use' as distinguished from operation, is with permission of the named insured, the insurer is liable for any accident.' Also Liberty Mutual Ins. Co. v. Steenberg Construction Co., 8 Cir., 1955, 225 F.2d 294; also the concurring opinion in the case of American Farmers Mutual Automobile Ins. Co., Riise, 214 Minn. 6, 8 N.W.2d 18, 19, decided by the Supreme Court of Minnesota.'

It thus appears that the Louisiana Court of Appeals concluded that the passenger, Don Bolton, was an omnibus insured because he was using the car in question, with the permission of the named insured. It further held that the insurer was liable for the negligent acts of the omnibus insured which were a proximate cause of the plaintiff's injury.

The provisions of the policy under consideration do not confine the use of the automobile to any part thereof or restrict its use to driving or operating same. The coverage extends to the ownership, maintenance or use of the automobile with the named insured's consent; and the use to which the automobile was being put at the time...