Ellis v. New Amsterdam Cas. Co

• Decision Date: 13 January 1938
• Parties: ELLIS. v. NEW AMSTERDAM CASUALTY CO.
• Court: Virginia Supreme Court

194 S.E. 687

ELLIS.

v.NEW AMSTERDAM CASUALTY CO.

Supreme Court of Appeals of Virginia.

Jan. 13, 1938.

^*

Error to Circuit Court of City of Suffolk; James L. McLemore, Judge.

Action by Gaskin Ellis against the New Amsterdam Casualty Company upon' an automobile liability policy. To review an adverse judgment, the plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C J., and HOLT, GREGORY, EGGLESTON, and SPRATLEY, J J.

Charles B. Godwin, Jr., of Suffolk, for plaintiff in error.

S. Burnell Bragg, of Norfolk, for defendant in error.

CAMPBELL, Chief Justice.

This is an action at law brought by the plaintiff in error against the New Amsterdam Casualty Company, defendant in error, to establish the liability of the defendant upon a policy of insurance issued by the defendant in favor of one S. Jaffe. There was a trial by a jury which resulted in a verdict in favor of the plaintiff. Upon motion of the defendant, the trial court set aside the verdict of the jury and entered a final judgment for defendant in error.

The controlling facts are as follows:

In September, 1933, the defendant issued to S. Jaffe, as an individual, a liability insurance policy covering a Chevrolet truck. The pertinent provisions of the policy are these:

"Statement 8: The occupation or Business of the named Assured is Merchant (furs and hides).

"Statement 9: The purposes for which the above described automobiles or trailers are to be used are Commercial Delivery,

"General Agreement--Does hereby agree with the named Assured as respects bodily injuries or death suffered, or alleged to have been suffered, by any person or persons other than the named Assured as the result of accidents occurring in the continental limits of the United States and Canada while this Policy is in force, by reason of the ownership, maintenance or use of any automobile or trailer described in the Schedule of Statements, including the loading and unloading of such automobile or trailer;

"Omnibus Coverage--(9) To extend the insurance provided by this Policy under Agreements (1) and (2) so as to be available, in the same manner and under the same conditions as it is available to the named Assured, to any person or persons while riding in or legally operating any of the automobiles or trailers described in the Schedule of Statements, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named Assured, or, if the named Assured is an individual, withthe permission of an adult member of the named Assured's household other than a chauffeur or a domestic servant* * * The unqualified term 'Assured' wherever used in this policy shall include in each instance any other person, firm or corporation entitled to insurance under the provisions and conditions of this paragraph, but the qualified term 'named assured' shall apply only to the Assured named and described as such in the Schedule of Statements:

"Exclusions--Condition A: This Policy does not cover any accident: (1) caused by an automobile or trailer while being used in any race or speed test; (2) caused by any automobile or trailer while being driven by any person in violation of law as to age, or under the age of fourteen (14) years in any event; (3) caused by any automobile while being used for towing or propelling any trailer or any vehicle used as a trailer; unless such automobile or trailer are described in the Schedule of Statements, but incidental assistance to a stranded automobile is permitted; (4) caused by any automobile or trailer while being used for rental and/or livery purposes, or for carrying of passengers for a consideration, unless permitted by the description of usage appearing in the Schedule of Statements; (5) caused by any automobile or trailer of the truck or delivery type or station wagon type used to carry persons to or from picnics, outings or games; (6) caused by any automobile or trailer while being used in any business, trade or occupation other than described in the Schedule of Statements; * * *

"Statutory Provisions--Condition F: Any specific statutory provision in force in the state in which it is claimed that the Assured is liable for any accident covered hereby shall supersede any provision in this Policy inconsistent therewith."

At the time of the accident suffered by plaintiff, Jaffe, the assured, a resident of Suffolk, Va., was engaged in the business of buying cattle, furs, and hides and also operated a stall in the Suffolk market. On the afternoon preceding the accident, Jaffe instructed his employee,. Charles Gray, to take two coops of chickens to Portsmouth, Va., to have them killed by a rabbi. Gray performed this service, returned to Suffolk, and deposited the chickens in the ice box at the market place. Instead of leaving the truck at Jaffe's place of business, he pro ceeded to a pool room in Suffolk, picked up several negro boys, and drove to the Cotton Club, a negro resort situated four miles from Suffolk. On the return from the Cotton Club, about 11:30 p. m., the truck collided with a bicycle upon which the plaintiff was riding. As a result of the collision, plaintiff suffered severe injuries.

On September, 14, 1934, plaintiff brought an action by notice of motion against S. Jaffe, as principal, and Gray, as agent, to recover damages as a result of the accident. Gray was called as an adverse witness by counsel for plaintiff and testified that at the time of the accident he was using the truck for his own pleasure and against the orders of Jaffe. The trial resulted in a verdict against Gray and in favor of Jaffe. Some time subsequent to the entry of judgment upon the verdict of the jury, Gray filed in the clerk's office an affidavit in which he repudiated the testimony given by him upon the trial of the case and set forth in the affidavit that at the time of the accident he had permission of Jaffe to use the truck. Following the filing of this affidavit plaintiff brought the present action against the defendant, and, upon the trial of the case, Gray testified as a witness for the plaintiff, repudiating his former testimony and claiming he had the permission of Jaffe to drive the truck at the time of the accident. This statement was flatly contradicted by Jaffe. The trial resulted, as heretofore stated, in a verdict for the plaintiff, which the court set aside and entered judgment for the defendant.

The error assigned is predicated upon the action of the court in setting aside the verdict and entering judgment for defendant. Whether or not, if we had been upon the jury trying the case, we would have accepted the statement of Gray, is immaterial and irrelevant. Upon a conflict of evidence the jury has accepted the evidence of Gray and in this jurisdiction the question of conflict is settled by the verdict of the jury.

In Margiotta v. Aycock, 162 Va. 557, 174 S.E. 831, 834, Justice Holt said:

"It is true that they claim that plaintiff's witnesses out of court and in the preceding trials had made statements materially different from those made in the present trial. This is an argument which might with compelling force have been addressed to the jury. It doubtless was, but it can seldom avail on appeal. If all that is claimed be conceded, it still could not change re-suits, for the issue was the truth of those made here and not elsewhere. A jury has the right to believe the testimony of a confessed perjurer though it should weigh his statements with great caution. The approval of the verdict by the trial judge adds weight to the verdict."

We come now to a discussion of what is conceded by counsel to be the determinative question in the case, viz.: Did the policy of insurance cover the purposes for which the truck was being used at the time of the accident? The basic contention of counsel for plaintiff is founded upon two propositions: First, that at the time of the accident Gray occupied the same relation to the policy that Jaffe would have occupied had he (Jaffe) been driving the truck at the time of the accident, and that under the terms of the policy Jaffe was not inhibited from using the truck for pleasure purposes. Second. Even if it should be determined that Jaffe was not covered by the general terms of the policy, yet he was protected against liability by section 4326a of the Code 1936, pursuant to that provision of the policy which reads:

"Statutory Provisions--Condition F: Any specific statutory provision in force in the state in which it is claimed that the Assured is liable for any accident covered hereby shall supersede any provision in this Policy inconsistent therewith."

There is no merit in this latter contention. The record shows that the policy was issued to Jaffe on September 15, 1933, while the act relied upon was not enacted until March 29, 1934. The act relates only to policies issued subsequent to its passage, and is in no sense retroactive in its effect.

In our opinion, the first contention is also untenable. The nature of the vehicle insured negatives the idea that it was to be used for pleasure purposes. This fact is emphasized by the assured in statement 9, where he says that the purpose for which the truck is to be used is "commercial delivery." It is conceded that the commercial use of the truck is confined under the terms of the policy to the business stipulated under the term, "occupation, " to wit, "furs and hides." In other words, the uses to which this truck may be devoted are the uses designated in the policy.

In Collins v. Metropolitan Insurance Company, 163 Va. 833, 839, 178 S.E. 40, 42, it is said:

"Undoubtedly policies of insurance are to be liberally construed in favor of the insured, and we have uniformly so held, but courts have no power to write contracts for people. Their duty is to construe those which they themselves have made.

" 'Our conclusion is that the policy must be construed according to its terms. They are plain and clear, and we are...