Dudley v. INLAND MUTUAL INSURANCE COMPANY
| Decision Date | 08 February 1962 |
| Docket Number | No. 8285.,8285. |
| Parties | Kathleen DUDLEY (minor), by her next friend, W. G. Smith; Lucille Dudley (minor), by her next friend, W. G. Smith; W. G. Smith, Ancillary Administrator of the Estate of Samuel Dudley, Deceased; and W. G. Smith, Ancillary Administrator of the Estate of Letha Louise Dudley, Deceased, Appellees, v. INLAND MUTUAL INSURANCE COMPANY, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Murray G. James, Wilmington, N. C. (James, James & Crossley, Wilmington, N. C., on brief), for appellant.
Alan A. Marshall and Lonnie B. Williams, Wilmington, N. C. (Poisson, Marshall, Barnhill & Williams, Wilmington, N. C., on brief), for appellees.
Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.
This appeal raises the question whether an automobile insurance policy issued by the Inland Mutual Insurance Company, defendant in the District Court, covered an automobile tractor and a trailer in a collision with another car in which a man and his wife were killed and their two minor children were injured. The tractor and trailer were not covered by the terms of the policy as written and issued to the insured but he testified that he had been told by the person through whom he procured the insurance that the vehicles were covered. The District Judge overruled an objection of the defendant to this testimony and submitted to the jury the question whether the policy covered the vehicles at the time of the accident and the jury found for the plaintiffs.
The insurance company issued an automobile liability insurance policy dated November 24, 1953, to A. L. Stewart of Fitzgerald, Georgia, for the period of one year ending November 21, 1954, which provided coverage for bodily injury or death to the limit of $5,000 for each person and $10,000 for each accident, together with coverage for property damage in the amount of $5,000. The policy contained an insuring agreement wherein the word "automobile" was defined to mean the motor vehicle or trailer described in the policy, and the word "trailer" was defined to include semi-trailer. It also contained the following provisions with respect to coverage, exclusions and conditions:
"INSURING AGREEMENTS
* * * * * * *
* * * * * * *
* * * * * * *
* * *"
As originally written the policy listed under the description of the automobile:
By radius endorsement No. 7 the coverage of the policy was limited to a radius of 300 road miles from Fitzgerald, Georgia.
Subsequently, in consideration of additional premium, the policy was changed by endorsements countersigned March 3, 1954 and effective March 1, 1954. Endorsement No. 7 was changed to provide unlimited area coverage.
Endorsement No. 27, entitled "Change in Declarations," noted the change in radius to unlimited area and listed under the description of the automobile the following:
Thus the coverage of the International truck described in the original policy was retained, except that it was described as a "Straight Truck" and the coverage of the Fruehauf semi-trailer was eliminated.
On March 19, 1954, after the policy had been changed, the tractor described in the policy, while being operated by an employee of Stewart, the insured, came into collision with an automobile in which the intestates and their children were riding as passengers and injured them as aforesaid. At that time the tractor was towing a Great Dane trailer, which was owned by Stewart but was not covered by the policy. Suits on behalf of the injured persons against Stewart resulted in judgments of $3634.60 and $3127.95 for the infant children, respectively, and $40,000 and $20,000 for the estates of the deceased husband and wife, respectively, and a judgment of $800 for property damages. Executions upon these judgments were returned unsatisfied and thereafter the pending suit was brought against the insurance company.
As we have noted, it was provided in the exclusions that the policy did not apply while the tractor was used for the towing of a trailer owned by the insured and not covered by insurance in the company. Accordingly, the liabilities incurred in the accident did not fall within the terms of the written contract. It was also provided in the exclusions of the policy that the terms of the policy should not be waived or changed except by endorsement signed by the president, a vice-president, secretary or assistant secretary of the company and countersigned by a duly authorized representative of the company. No such endorsement providing coverage for the International truck and the Great Dane trailer was attached to the policy. The plaintiffs, however, contend that coverage was provided for the vehicles by an oral statement made to Stewart by E. W. Strickland, as to which Stewart testified to the following effect. Stewart purchased all of his automobile insurance through Strickland, who operated as Mutual Insurance Agency. He said that Strickland was not his agent. When Stewart needed insurance it was his practice to call Strickland, who would come to see him, and Stewart would point out the vehicles which he wanted insured. The original policy of November 21, 1953, was acquired in this way and delivered to Stewart's office. On or about March 1, 1954, Stewart, desiring to change the radius of operation and also to change the trailer in the original policy, called Strickland and pointed out to him the tractor and the Great Dane trailer, which were then coupled together, and said that he wanted them covered by the policy. Strickland examined the vehicles, took down the motor numbers, and said they were covered. The endorsements through which the changes were made in the policy as of March 1, 1954, were however not delivered to Stewart until the day of the trial. Stewart paid all of the premiums on the insurance to Strickland and no offer was made by the company to return them. Stewart reported the accident to Strickland the day after it occurred and the company sent a representative to see him who was intoxicated and was asked to return but did not do so. Subsequently the company sent Stewart a letter dated May 6, 1954, denying liability.
On cross-examination Stewart admitted that after the accident he signed a written statement dated March 26, 1954, in which he declared that he carried the original policy through broker Atlantic Insurance Company, Atlanta, Georgia, obtaining the policy from the J. L. Ewing Insurance Agency, Fitzgerald, Georgia, which was later taken over by Strickland. In this statement it was set out that the policy covered the International trailer and the Fruehauf semi-trailer, and that on March 1, 1954, Stewart called Strickland and requested that he have the trailer removed from the policy and to increase the limitation of use from 300 miles to unlimited use, and that after the accident occurred he had asked Strickland to endorse the policy to cover the new trailer which Stewart had purchased. In this statement Stewart did not say that he had asked Strickland to cover the Great Dane trailer or that Strickland had agreed to do so. Stewart said he could not remember who came to see him to get this statement and did not recall who took the statement or the circumstances under which it was gotten or that he had signed it. He said he was upset on March 26th as the result of the accident on March 19th.
Upon the conclusion of the plaintiffs' testimony the defendant company moved the court to strike the evidence of Stewart in respect to his conversation with Strickland. This motion was denied. The defendant also moved for a dismissal of the action under the terms of the policy, but the court deferred action at that time.
In defense the company offered in evidence the signed statement of Stewart, above described, and also the testimony of one Harry L. Knight. He stated that he was the manager of Atlantic Insurance, Inc. and as such was the authorized representative of the defendant insurance company and its general agent in the States of Georgia, Florida, South Carolina, and Tennessee; that in November 1953 he issued and countersigned the original policy as the authorized representative of the company and that the business came to him through Ewing, who collected the premium and paid it to him. He further testified that he appointed all the agents for the company and that Strickland was not an agent of the company; that at Strickland's request by telephone...
To continue reading
Request your trial
-
Buckley v. VALLEY CAMP COAL COMPANY
...informal action, it would be unduly harsh to invoke the formality of Rule 51 and hold plaintiff to a waiver. Cf. Dudley v. Inland Mut. Ins. Co., 299 F.2d 637 (4th Cir. 1962); Willis v. Pa. R. R., 269 F.2d 549 (4th Cir. 1959). 2 Holcombe v. Buckland, 130 F.2d 544 (4th Cir. 1942); Waddell v. ......
-
McDougall v. Dunn
...quoting from Hormel v. Helvering (1941) 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037. See, also, Dudley v. Inland Mutual Insurance Co. (4th Cir. 1962) 299 F.2d 637, 641-642. Indeed, "Exceptional cases or particular circumstances may prompt a reviewing court, where injustice might otherwis......
-
Washington Gas Light Co. v. Virginia Electric & Pow. Co.
...this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice. Accord, Dudley v. Inland Mutual Insurance Co., 299 F.2d 637 (4th Cir. 1962). Indeed, if deemed necessary to reach the correct result, an appellate court may sua sponte consider points not p......
-
Hyde v. Land-Of-Sky Regional Council, LAND-OF-SKY
...authority and ratification from the court's charge constitutes plain error prejudicial to their defense. See Dudley v. Inland Mutual Insurance Co., 299 F.2d 637 (4th Cir. 1962). As explained above, under FRCP Rule 49(a), defendant waived its right to have a jury decide those issues, and the......