Columbia Cas. Co. v. Zimmerman

• Decision Date: 12 December 1952
• Citation: 62 So.2d 338
• Parties: COLUMBIA CASUALTY CO. et al. v. ZIMMERMAN et al.
• Court: Florida Supreme Court

Page 338

62 So.2d 338

COLUMBIA CASUALTY CO. et al. v. ZIMMERMAN et al.

Supreme Court of Florida, en Banc.

Dec. 12, 1952.

Rehearing Denied Jan. 20, 1953.

J. Thomas Gurney, Orlando, for appellants.

Jackson A. Cargill and Albert L. Lewis, Orlando, for Cecil L. Zimmerman and Cecil Zimmerman, Jr.

Baker & Thornal, Orlando, for James D. Greene and Orlando Transit Co.

Maguire, Voorhis & Wells, Orlando, for Mary Yates and American Fire & Casualty Co. and Donald T. Senterfitt, Orlando, as administrator ad litem of estate of John Ross Avent, Sr.

Donald T. Senterfitt, Orlando, as guardian ad litem for Walter Steele, a minor.

Donald T. Senterfitt, Orlando, as guardian ad litem for Cecil L. Zimmerman, Jr., a minor.

PER CURIAM.

Columbia Casualty Company issued a policy of insurance on a Ford automobile, the property of Martin W. and Erma L. Wiltse. While the said automobile was being driven by Mary Yates it collided with a bus of Orlando Transit Company, resulting in injury to James D. Green, driver of the bus, M. T. Sullivan, Juanita Sullivan, James H. Burris, Alma B. Burris, Cecil L. Zimmerman, Leona Zimmerman, Cecil L. Zimmerman, Jr., Walter Steele and Margery E. Hill, passengers on the bus. John Ross Avent, Sr., also a passenger on the bus suffered injuries from which he died shortly thereafter. A house belonging to Inez S. Mann and the bus of Orlando Transit Company were also damaged.

C. L. and Leona Zimmerman and James H. and Alma Burris have brought suits against Mary Yates and Martin W. Wiltse to recover damages for personal injuries resulting from the collision. It appears that at the time of the collision Cecil Yates, husband of Mary Yates, held a policy of insurance with American Fire and Casualty Company, covering his automobile; it also covered Mary Yates when operating a nonowned automobile, but it provided that said policy was excess insurance over any other valid and collectible insurance available to the insured. Relying on these insurance contracts, Mary Yates and American Fire and Casualty Company made demand upon Columbia Casualty Company to defend the suits brought against Mary Yates and Martin W. Wiltse.

Columbia Fire and Casualty Company advised Mary Yates and American Fire and Casualty Company that it would not defend the suits on behalf of Mary Yates because she was not driving the automobile at the time of the collision with the knowledge and consent of the owner. American Fire and Casualty Company then undertook the defense of the suits on behalf of Mary Yates informing Columbia Casualty Company that it was doing so on its behalf and demanded that Columbia Casualty Company compensate it for such defense. Demand was also made on Martin W. Wiltse by Margery E. Hill and Inez S. Mann that they be compensated for injuries alleged to have been sustained in the collision.

The bill of complaint in addition to the facts so stated, alleged that complainants contemplate that other demands will be made on them or that other suits will be brought against them to recover damages for injuries sustained from said collision. It prays for a declaratory decree to determine whether or not Columbia Casualty Company is obligated under its policy of insurance covering the Wiltse automobile to defend the pending suits on behalf of Mary Yates, whether it would be obligated to defend any future suits brought against Mary Yates or other complainants for damages resulting from said collision or whether it is required under the Wiltse policy to pay any judgments on behalf of Mary Yates and to determine if at the time of the collision the Wiltse automobile was being driven with the knowledge and consent of Martin W. and Erma L. Wiltse or either of them. Motions to dismiss were granted on the theory that the bill of complaint did not state a cause of action within the scope of the declaratory judgments statute. The complainants have appealed from this decree.

The real question which appellants sought to have determined is a purely factual one, namely, whether or not Mary Yates was driving the automobile with the knowledge and consent of the owners, or either of them.

The statutes involved are Sections 87.02 and 87.05, F.S.A. Section 87.02, F.S.A., is as follows:

'Any person claiming to be interested or who may be in doubt as to his rights under a deed, will, contract or other article, memorandum or instrument in writing or whose rights, status or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum or instrument in writing, or any part thereof, and obtain a declaration or rights, status or other equitable or legal relations thereunder.' (Emphasis supplied.)

It appears that the controversy which gives rise to this appeal does not embrace any question of the construction or validity of a statute, regulation, municipal ordinance, contract, deed, will or other article, memorandum or instrument or any part thereof. The thing which the appellant asserts it is seeking to have construed is an insurance policy, the validity or construction of any portion of which is not in question.

The policy provides, in effect, that if the automobile covered by the policy is being driven by someone without the knowledge and consent of the insured, the insurance company is not liable to the insured and is not required to defend under the policy. This provision is plain and unambiguous.

The question of whether or not the automobile was being driven with the knowledge and consent of the insured was a question of fact to be determined as any other question of fact and requires no construction of the insurance policy in order to determine the meaning thereof.

Appellants rely primarily upon the case of Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, 809. Great significance is attached to the following language in the opinion in Ready v. Safeway Rock Co., supra:

'The test to activate jurisdiction under the instant act is whether or not the moving party shows that he is in doubt as to the existence or nonexistence of some right, status, immunity, power or privilege that he is entitled to have such doubt removed and if shown to be existent, seek such relief as the circumstances warrant.'

The language quoted gives a test to activate the jurisdiction of the Court under the statute. There must be some doubt as to the existence or non-existence of some right, status, immunity, power or privilege, which may be at stake under a deed, will, contract or other article, memorandum or instrument in writing. There is no doubt claimed or asserted due to any ambiguity in the insurance policy and the test given in the case of Ready v. Safeway Rock Co., supra, does not exist in this case.

In the case of Coral Gates Properties, Inc., v. Hodes, Fla., 59 So.2d 630, the Court had before it an oral contract. In that case we held that even an oral contract, when the terms are not in dispute, may be the basis for a declaratory judgment proceeding where there was some doubt as to the proper interpretation of the contract. The same rule applies here to the written contract. There must be some doubt as to the proper interpretation of the written contract or as to the existence or non-existence of some right, status, immunity, power or privilege under the written contract, and that a construction thereof is necessary in order to determine the rights of a party having such doubt as to the meaning of the contract.

The complaint in this case shows on its face that there is no doubt as to the meaning of the contract. The only doubt which is shown to exist is whether or not the automobile was being driven with, or without, the knowledge and consent of the insured. This is not a doubt as to the meaning of the contract or as to the proper interpretation of the contract. It is simply a doubt as to what will be the ultimate outcome of a consideration of the facts bearing on the question of whether or not the automobile was being driven with the knowledge and consent of the insured.

The declaratory judgment statute cannot and should not be extended to cover any such situation.

The judgment appealed from be and is hereby affirmed.

SEBRING, C. J., and THOMAS, HOBSON, ROBERTS, and MATHEWS, JJ., concur.

DREW, J., concurs specially.

TERRELL, J., dissents.

DREW, Justice (concurring specially).

I concur in the judgment of affirmance, not because of the reasons advanced in the foregoing opinion but because I am of the view that the Chancellor below did not abuse his discretion in dismissing the complaint under the particular facts and conditions appearing in the record. I do not agree that relief of the nature sought could not be granted under the provisions of the statutes referred to in an appropriate case.

TERRELL, Justice (dissenting).

The factual statement in the majority opinion is in the main correct and ample but I think it misconceives both the scope and effect of the statute involved and the question presented.

That Columbia Casualty Company issued the policy of insurance to Martin W. and Erma L. Wiltse and that it agreed to defend any suit for damages brought against the driver of said automobile if driven with the knowledge or consent of the owner is not denied. It is contended that Mary Yates was not driving the automobile of Martin W. and Erma L. Wiltse at the time...