Farm Bureau Mut. Automobile Ins. Co. v. Violano, 54.

Decision Date01 December 1941
Docket NumberNo. 54.,54.
Citation123 F.2d 692
PartiesFARM BUREAU MUT. AUTOMOBILE INS. CO. v. VIOLANO. VIOLANO et al. v. FARM BUREAU MUT. AUTOMOBILE INS. CO.
CourtU.S. Court of Appeals — Second Circuit

William H. Edmunds and Guy M. Page, both of Burlington, Vt., for defendant-appellant and appellee Farm Bureau Mut. Automobile Ins. Co.

Peter Giuliani, of Montpelier, Vt., and Finn & Monti, of Barre, Vt., for plaintiff-appellant and appellee Rose Violano, adm'x.

C. O. Granai, of Barre, Vt., for defendants-appellants and appellees J. Alan Partridge and J. Arthur Partridge.

Before L. HAND, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

This is an appeal from a judgment holding Farm Bureau liable to the extent of $10,155 because of a judgment in the amount of $12,155 obtained by Rose Violano, as administratrix, against J. Alan Partridge for negligently causing the death of Geuseppe Violano while driving a Ford coach owned by his father, J. Arthur Partridge. Farm Bureau is admittedly liable to J. Alan in this amount under the "omnibus clause" of a policy issued to J. Arthur on the death car, unless J. Alan, at the time of the accident, was covered by other valid and collectible insurance. Such other insurance, according to Farm Bureau, was provided by a policy issued by the Shelby Mutual Plate Glass and Casualty Company. The court below held that the Shelby insurance did not apply to the accident in question, and Farm Bureau here challenges the validity of that holding. The judgment also held Farm Bureau liable to J. Alan for the expense of his defense in the suit brought against him by Mrs. Violano for $200 damages, for his confinement in jail under a body execution issued after Farm Bureau's refusal to pay the Violano judgment, and for the costs of the present action. There is a cross-appeal by Mrs. Violano, J. Alan and J. Arthur based on the court's failure to hold Farm Bureau liable for the full amount of the $12,155 judgment.

J. Arthur was the owner of four motor vehicles. Three of them, including the Ford coach which killed Violano, were insured by Farm Bureau. The policy on the coach was issued by it on February 22, 1934, and contained an omnibus clause providing that "the terms and conditions of this policy are so extended as to be available, in the same manner and under the same conditions as they are available to the Named Assured, to any person or persons while riding in or legally operating the within described automobile, 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 * * *. If any person, firm or corporation other than the Named Assured included in this insurance is covered by valid and collectible insurance against a claim also covered by this policy, such other person, firm or corporation shall not be entitled to indemnity or protection under this policy." The fourth vehicle, a Ford truck, was insured by a policy subsequently issued to J. Arthur by Shelby, dated April 30, 1934. That policy also contained an omnibus clause. The situation on June 26, 1934, then, was that J. Arthur was covered for any liability as owner or operator of his Ford coach and Ford truck, and that J. Alan, his son, was protected when using either vehicle with his father's permission. On that day, J. Alan, while driving the truck on the wrong side of the road, struck another vehicle and caused damages amounting to $175. He and his father were thereupon required by the Commissioner of Motor Vehicles, pursuant to the provisions of the Vermont Financial Responsibility Law, Public Laws of Vermont 1933, §§ 5190-5199, to file "proof of financial responsibility to satisfy any claim for damages" in specified amounts.

The law is by no means unambiguous as to the necessary extent of such proof. § 5190 says financial responsibility must extend to "any claim for damages," but in § 5191, on "coverage", it was thought necessary specifically to require proof as to "all motor vehicles owned by a person." This would not, at first blush, seem to require any proof from J. Alan, who owned no vehicles, but we may assume, as the commissioner and parties seem to have assumed, that J. Alan was obligated to prove his responsibility as an operator of any cars he might drive. Since he was already covered as to his father's vehicles, all he needed to satisfy the law was coverage as to the cars of third persons. Such coverage was provided by a rider, "Auto 1-S," endorsed in typewriting upon the Shelby policy on July 16, 1934. That rider provided: "In consideration of an additional premium of $3.80 Public Liability and $1.80 Property Damage, and the premium stated in the policy, it is agreed that the policy, subject to its limitations, covers the liability of J. Alan Partridge provided he is (1) a relative of the named assured who owns the automobile described in the policy, and (2) resides in the household of such named assured, and of any other person, firm or corporation covered by the policy for damages resulting from an accident occurring while such named relative is driving, or riding in any other automobile or motorcycle of any type with the permission of any person having the right to grant such permission, except an automobile or motorcycle (1) owned in whole or in part by such relative or any member of his household, or (2) registered in the name of such relative or any member of his household. The coverage provided under this endorsement shall not extend to the owners of the automobiles or motorcycles in which the named relative is riding or which he is driving at the time of the accident. The provisions of the policy in reference to other valid and collectible insurance are hereby eliminated as respects the coverage provided by this endorsement and it is agreed that if there exists, at the time of the accident any insurance taken out by or effected on behalf of anyone other than the named assured and under the terms of which the named assured is entitled to protection and coverage, then the coverage provided by this endorsement shall be excess insurance over and above the amount of such other valid and collectible insurance."

A second rider, "Auto 5-S," signed the next day, provided as follows: "Uniform Financial Responsibility Endorsement: Any coverage provided by this policy for liability for bodily injury or death or liability for property damage is hereby amended to conform with the provisions of the Motor Vehicle Financial Responsibility Law of the State or Province in which the disclosed automobile is registered at the time of the accident and/or in which the disclosed automobile is operated at the time of the accident during the policy period, to the extent of coverage and limits of liability required by such law but not in excess of the limits of liability stated in the policy. The assured or any other person covered by the policy agrees to reimburse the Company for any payment made by the company on account of any accident claim or suit involving a breach of the terms or conditions of this policy, which payment the Company would not have been obligated to make under the provisions of this policy except for the agreement contained in the foregoing paragraph. Subject in all other respects to all the schedule of statements, general conditions, special conditions and representations of this policy."

A "Financial Responsibility Insurance Certificate," dated July 24, 1934, was thereupon signed by Shelby's authorized representative and filed with...

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