George S. Allen v. the Travelers Indemnity Co

• Citation: 187 A. 512,108 Vt. 317
• Parties: GEORGE S. ALLEN v. THE TRAVELERS INDEMNITY CO
• Decision Date: 06 October 1936
• Court: United States State Supreme Court of Vermont

187 A. 512

108 Vt. 317

GEORGE S. ALLEN v. THE TRAVELERS INDEMNITY CO

Supreme Court of Vermont

October 6, 1936

May Term, 1936.

Automobile Liability Insurance---Exemption from Coverage of Person Operating Repair Shop, etc.---Evidence Admissible to Show Operation of Automobile Arising out of Operation of Repair Shop---Reception of Evidence as Prejudicial When No Use Made of It---Finding as to Permission of Assured for Use of Automobile Unnecessary When Clearly Implied---That Person Was "Legally Using" Automobile Held Conclusion of Law from Facts Found---Burden of Proof on Insurer as to Whether Delivery of Automobile after Completion of Repairs Was Operation Thereof Arising out of Operation of Repair Shop---Factors Determining Operation of Automobile as Arising out of Operation of Repair Shop etc.---Delivery of Automobile after Completion of Repairs as Arising out of Operation of Repair Shop, etc.---Evidence Sufficient to Sustain Finding Delivery after Completion of Repairs Was Operation Arising out of Operation of Repair Shop.

1. In action by garage proprietor against liability insurance company to recover amount paid in settlement of automobile accident claims, where accident occurred while plaintiff after completion of repairs was delivering automobile belonging to defendant's assured to such assured at a place some distance from plaintiff's garage, in accordance with an undertaking so to do, and defendant denied liability on ground that delivery arose out of operation of garage so that claim was not within coverage of policy evidence of plaintiff's statements made in course of telephone conversation with assured that he would assume complete responsibility, could put Vermont license plates on the car, and had complete insurance coverage, held material and admissible.

2. In trial of action by court, reception of certain evidence, if error, held not prejudicial, since record showed that no use was made of it.

3. In action by garage proprietor against liability insurance company to recover amount paid in settlement of automobile accident claims, where it was clear from findings made that plaintiff was using automobile owned by defendant's assured with the permission and even by the request of such assured, express finding to that effect held unnecessary.

4. In such circumstances, where plaintiff was in possession and control of the automobile as bailee of the owner and operating it for a purpose authorized by such owner, it follows as a conclusion of law, which it is unnecessary to state in the findings, that plaintiff was "legally using" the automobile within the meaning of the policy.

5. In such action, burden of proof was on defendant insurance company to show that undertaking of plaintiff, to deliver automobile after completion of repairs to assured at a place some distance from plaintiff's garage, arose out of operation of plaintiff's garage and automobile repair shop so as to bring claim within exception to coverage of policy.

6. The phrase "arising out of the operation" of a public garage or automobile repair shop, as used in clause of automobile insurance policies providing an exemption from coverage, cannot be precisely defined; whether a particular transaction comes within the phrase depends upon the circumstances of the case, the nature of the transaction, its connection with the business, and whether it can be said to be a natural or necessary incident or consequence of the operation, though not foreseen or expected.

7. A local delivery of automobiles after having been repaired may well be said to arise out of the repair business, and the fact that a delivery is to be made at a distance does not necessarily lead to an opposite conclusion.

8. In action by garage proprietor against liability insurance company to recover amount paid in settlement of automobile accident claims, when accident occurred while plaintiff after completion of repairs was delivering automobile to defendant's assured at a place some distance from plaintiff's garage, in accordance with an undertaking so to do, evidence held sufficient to sustain finding that the delivery was undertaken as something connected with and arising out of the operation of plaintiff's business and hence that the claim was not within the coverage of the policy.

ACTION OF CONTRACT on liability insurance policy to recover amount paid in settlement of automobile accident claims. Plea, that the claims were not within the coverage of the policy. Heard on agreed statement of facts and concessions with respect to testimony at the February Term, 1936, Orange County Sturtevant, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Fred E. Gleason for the plaintiff.

Lawrence, Stafford & O'Brien for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.

OPINION

MOULTON

This is an action of contract upon a liability insurance policy. It was tried without a jury upon an agreed statement of facts, and concessions by both parties that certain witnesses, if present, would testify to certain facts, exceptions being taken to the materiality of the evidence. The court filed a finding of facts and rendered judgment for the defendant, and the questions before us arise on the plaintiff's exceptions. It is agreed that if the plaintiff is entitled to recover, the damages are $ 3,300.

Holmes, a resident of Kansas, was motoring through Vermont, when his automobile broke down, and he placed it in the hands of the plaintiff, who operated a garage in Randolph, for repairs. The trouble was such that new parts were required, which had to be ordered from the factory, and pending their arrival, Holmes went to Boston. From there he telephoned the plaintiff saying that he wanted his car delivered to him at some point in his route back to Kansas, and upon the plaintiff's suggestion, Pittsfield, Massachusetts, was selected.

Holmes told the plaintiff to send the repair bill by the man who would be driving the car, and also to tell the driver what the charge would be for the delivery, the compensation for this not being fixed, but being on the basis...