Collins v. New York Cas. Co.
| Decision Date | 01 June 1954 |
| Docket Number | No. 813,813 |
| Citation | 140 W.Va. 1,82 S.E.2d 288 |
| Court | West Virginia Supreme Court |
| Parties | COLLINS, v. NEW YORK CAS. CO. |
Syllabus by the Court.
1. As surplusage in a declaration which does not render the declaration inconsistent or repugnant may not be reached by demurrer, the objectionable matter may appropriately be deleted from the pleading by a motion to strike.
2. The ruling of a trial court in overruling a motion to strike matters contained in a declaration, which are not germane to the cause of action pleaded in the declaration, should be reversed on certificate to this Court.
3. An omnibus clause providing for insureds other than the named insured, inserted in an automobile public liability insurance policy, pursuant to the directive prescribed by a departmental ruling promulgated by the Insurance Commissioner of West Virginia, under Code, 33-6-3, which clause provides that 'The unqualified word 'insured' * * *, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the actual use of the automobile was with the permission of the named insured' is clear and unambiguous, and is not subject to judicial interpretation, but should be applied liberally to effectuate the purpose for which the clause was inserted in the policy.
4. An omnibus clause of an automobile public liability insurance policy which provides that 'The unqualified word 'insured' * * *, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the actual use of the automobile is with the permission of the named insured' should be applied to the facts in each case so as to permit coverage as an additional insured of a person using the insured automobile with the insured's permission, though such person deviates slightly from the permissive use, provided such deviation was one to which in the first instance the insured would be presumed to have assented.
5. A person using an insured's automobile with the permission of the insured is not 'an additional insured' under the omnibus clause of an automobile public liability insurance policy which provides that 'The unqualified word 'insured' * * *, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the actual use of the automobile is with the permission of the named insured', where such person while using the automobile materially deviates from the scope of the permission given by driving the automobile for a purpose and beyond the time and geographical limits to which insured would not have assented when he parted with possession of the automobile.
Ernest E. Winters, Huntington, for plaintiff.
Fitzpatrick, Marshall, Huddleston & Bolen, E. A. Marshall, Bert H. Early, Huntington, for defendant.
In this action of assumpsit, instituted in the Circuit Court of Cabell County by Pauline Collins against New York Casualty Company, a corporation, in which the plaintiff seeks to recover the principal sum of five thousand dollars, with interest thereon from June 11, 1948, until paid, upon an automobile public liability insurance policy issued by the defendant insurance company on an automobile owned by Don J. Fodal, the plaintiff bases the alleged liability of the defendant upon the omnibus clause of the policy, alleging in an amended declaration, the original declaration not being included in the record on this certificate, that one Clifford Stepp, operator of the Fodal automobile at the time it struck and injured the plaintiff, was an 'additional insured' within the meaning of such clause.
The amended declaration incorporated parts of the evidence taken in a law action instituted by Pauline Collins against Clifford Stepp, the operator of the automobile, and Don J. Fodal, the owner thereof, to recover damages for personal injuries sustained by plaintiff by having been struck by the Fodal automobile, while being driven by Clifford Stepp, which, after a trial by jury, resulted in a judgment of nihil capiat per breve as to the defendant therein, Fodal, and against the other defendant therein, Clifford Stepp, upon which this action is based; and a transcript of parts of the evidence taken in a like action instituted by Jean Morrison against Fodal and Stepp, to recover damages for personal injuries alleged to have been incurred by the plaintiff therein at the same time and place that plaintiff herein was injured, by reason of the Fodal automobile striking and injuring Jean Morrison, while being driven by Stepp.
Plaintiff's counsel in his brief bearing on this certificate states: 'By agreement of counsel the declaration contains all facts so that the issue could be determined by the demurrer thereto.' In their reply brief defendant's counsel state that the transcript of the record in the action of Collins against Fodal and Stepp was contained in plaintiff's original declaration, and that the agreement between counsel was that the original declaration should contain a transcript of the record in the Collins action only. Be that as it may, the agreement is not contained in the record now before us on this certificate, and, as hereinabove stated, the amended declaration incorporates the record in both the Collins and Morrison actions, the transcript in the latter of which actions defendant's counsel in their reply brief state, was included in the pleadings for the first time without any agreement of counsel. Defendant's counsel filed a written motion that the trial court strike from the amended declaration the portion of the transcript in the action of Morrison against Fodal and Stepp. Likewise the defendant filed a written demurrer to plaintiff's amended declaration, which set forth as the only ground in support thereof that it appears upon the face of the amended declaration that Clifford Stepp was not at the time he struck the plaintiff, Pauline Collins, while operating the Fodal automobile, an 'insured' within the terms of the automobile public liability insurance policy issued to the named insured, Don J. Foda.
The trial court overruled the defendant's written motion to strike, and, holding that Clifford Stepp was an insured under the terms of the policy, overruled defendant's demurrer to the amended declaration, and certified to this Court the following rulings: '(1) Whether the defendant's written motion to strike should be sustained or overruled'; and '(2) Whether Clifford Stepp was or was not an 'insured' under the terms of the automobile liability insurance policy issued to Don J. Fodal?'
As defendant's written motion to strike was directed solely to the transcript of the record in the action of Morrison against Fodal and Stepp, the trial court's ruling was necessarily limited to the question raised by the motion to strike, and on this certificate we shall in considering the motion to strike consider only the propriety of the incorporation in the amended declaration of the transcript of the evidence in the action of Morrison against Fodal and Stepp.
The amended declaration alleges that on October 25, 1947, while the policy of public liability insurance on which this action in assumpsit is based was in full force and effect, the plaintiff, Pauline Collins, was seriously injured by being struck by the automobile owned by Don J. Fodal, embraced in the policy of insurance, while such automobile was being carelessly, recklessly, negligently and unlawfully operated in the City of Huntington, Cabell County, by Clifford Stepp, who allegedly at the time and place plaintiff was injured was operating the automobile 'with the permission' of Fodal.
The amended declaration further alleges that in the law action of Collins against Stepp and Fodal, judgment was obtained against Stepp alone; that Stepp is insolvent and unable to pay the judgment; and that plaintiff has been unable to collect the judgment by execution and that no part of the judgment or costs has been paid.
The pertinent provisions of the policy upon which this action is based are:
'Coverage A--Bodily Injury Liability
'All sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons caused by accident and arising out of the ownership, maintenance or use of the automobile.'
'Definition of 'Insured"
'The unqulified word 'insured' (whenever used in Coverages A and B., and in other parts of this policy, when applicable to such coverages) includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the actual use of the automobile is with the permission of the named insured.'
From the transcript of the evidence in the case of Collins against Fodal and Stepp, incorporated in the amended declaration, it appears that Don J. Fodal, owner of the automobile insured by the defendant, lived with his wife and child in an apartment building on West Fifth Avenue in the City of Huntington; that about six o'clock in the evening of October 25, 1947, the day on which plaintiff was injured, Clifford Stepp came to the Fodal apartment and asked for the use of the Fodal automobile, the automobile embraced in the public liability policy, to drive 'uptown' to collect money from 'somebody who owed him'; that Fodal loaned Stepp his automobile with the understanding that Stepp would use it only to drive 'uptown' to collect a...
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