Manufacturers Cas. Ins. Co. v. Goodville Mut. Cas. Co.

• Decision Date: 22 May 1961
• Citation: 403 Pa. 603,170 A.2d 571
• Parties: MANUFACTURERS CASUALTY INSURANCE COMPANY, Appellant, v. GOODVILLE MUTUAL CASUALTY COMPANY, D. M. Stoltzfus & Son, Inc., Roy M. Wertz & Carrie M. Wertz, Defendants, and M. A. Stoltzfus, Permissive Defendant.
• Court: Pennsylvania Supreme Court

Page 571

170 A.2d 571

403 Pa. 603

MANUFACTURERS CASUALTY INSURANCE COMPANY, Appellant, v. GOODVILLE MUTUAL CASUALTY COMPANY, D. M. Stoltzfus & Son Inc., Roy M. Wertz & Carrie M. Wertz, Defendants and M. A. Stoltzfus, Permissive Defendant.

Supreme Court of Pennsylvania.

May 22, 1961.

Duane, Morris & Heckscher, Henry T. Reath, Philadelphia, W. Hensel Brown, Jr., Lancaster, for appellant.

Barley, Snyder, Cooper & Mueller, John C. Pittenger, Ralph M. Barley, Lancaster, for appellees.

Before CHARLES ALVIN JONES, C., J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

This declaratory judgment proceeding was instituted by the plaintiff, Manufacturers Casualty Insurance Company, in an effort to impose liability upon Goodville Mutual Casualty Company, under an insurance policy issued by the latter company, for contribution to an $8,000 settlement and a $25,000 judgment for the respective plaintiffs in two personal injury actions, growing out of the same accident, for which Manufacturers was concededly liable under its policy of insurance covering the impleaded defendant company in the two tort actions. Manufacturers also asks reimbursement from Goodville for one-half of the counsel fees and legal expenses incurred in the defense of the trespass cases. The court below decided in favor of Goodville on the ground of non-liability under the terms of its policy and entered an order dismissing the plaintiff's petition for a declaratory judgment. From that order, Manufacturers has appealed.

The material facts are not in dispute.

Goodville Mutual Casualty Company issued its automobile liability insurance policy to one Roy M. Wertz and his wife covering an automobile and a horse trailer owned by them. Under this policy, Goodville contracted 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay' for damages 'caused by accident and arising out of the ownership, maintenance or use' of the automobile or trailer. (Emphasis supplied.)

'The insured', as identified by the policy, were Roy M. Wertz and his wife and any person or organization using the automobile or trailer 'with the permission of either' of them.

Roy M. Wertz gave such permission to M. A. Stoltzfus, individually, for his use of the trailer for the transportation of a horse. Stoltzfus hired one Wingenroth to do the actual transporting by means of a pick-up truck, as the motive power, to the rear and of which the horse trailer was attached. The pick-up truck was owned by D. M. Stoltzfus & Son, Inc., from which concern M. A. Stoltzfus, the individual, had rented it for the operation.

While the pick-up truck with the horse trailer attached was being driven by Wingenroth in an easterly direction on the Pennsylvania Turnpike, Wingenroth lost control thereof and the truck and trailer crossed the medial strip and the two westbound lanes, and came to rest against the guard rail on the north side of the highway with the trailer extending across most of the right westbound land of the turnpike. While the truck and trailer were in that position, an automobile traveling in the right westbound lane of the turnpike crashed into the trailer. William J. O'Malley was the owner and driver of the colliding automobile in which Charles O'Malley and Richard A. Bissell were passengers. Charles O'Malley and Bissell sustained personal injuries and William J. O'Malley suffered property damage to his car. The O'Malleys and Bissell separately sued D. M. Stoltzfus & Son, Inc., in trespass for recovery of their respective damages. ¹ Manufacturers Casualty Insurance Company's policy insuring D. M. Stoltzfus & Son, Inc., against such liability also covered M. A. Stoltzfus the individual. Manufacturers assumed the defense of D. M. Stoltzfus & Son, Inc., in the two trespass actions and, having given Goodville notice of the pendency of the suits, requested that company to participate in the defense of the Stoltzfus corporation which Goodville declined to do.

Goodville contended in the court below, and now here, that this accident was not one 'arising out of the ownership, maintenance or use of' the horse trailer. With that contention, the court below agreed, holding that 'arising out of' must be construed to mean 'proximately caused by.' However we do not so interpret the words 'arising out of.'

In Suburban Service Bus Co. v. National Mut. Casualty Co., 237 Mo.App. 1128, 183 S.W.2d 376, 378, St. Louis Ct. of Appeals, Mo., 1944, it was said, 'The words 'arising out of the use of the bus' are very broad, general, and comprehensive terms. The insurer made no attempt to limit the plain, usual, and ordinary meaning of the term 'use.' We find nothing in the policy requiring that the use of the bus shall be the direct and proximate cause of the injury. The words 'arising out of the use of the bus' are much broader than words such as 'directly and proximately caused by the use of the bus.''

In American Fire & Casualty Co. v. Allstate Ins. Co., 4 Cir., 1954, 214 F.2d 523, the owner of a Chrysler automobile, while towing his jeep, was involved in an accident with another automobile. Suit was instituted against him by two occupants of the latter vehicle. The...