Maryland Cas. Co. v. Heald

• Decision Date: 01 June 1965
• Docket Number: No. 584,584
• Citation: 211 A.2d 177,125 Vt. 116
• Court: Vermont Supreme Court
• Parties: MARYLAND CASUALTY COMPANY v. Everett L. HEALD, Stephen Heald, Raymond W. Heald, Elizabeth Gillilan, Administratrix of the Estate of Philip Arnold, Hartford Accident & Indemnity Co., Merchants Mutual Insurance Co., and Stephen B. Collins, Administrator of the Estate of Newell Parker.

Page 177

211 A.2d 177

125 Vt. 116

MARYLAND CASUALTY COMPANY v. Everett L. HEALD, Stephen Heald, Raymond W. Heald, Elizabeth

Gillilan, Administratrix of the Estate of Philip Arnold,

Hartford Accident & Indemnity Co., Merchants Mutual

Insurance Co., and Stephen B. Collins, Administrator of the

Estate of Newell Parker.

No. 584.

Supreme Court of Vermont.

June 1, 1965.

Wick, Dinse & Allen, Burlington, for plaintiff.

Albert W. Coffrin and Douglas C. Pierson, Burlington, for Hartford Accident & Indemnity Co.

Leary & Leddy, Burlington, for Merchants Mut. Ins. Co.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KERSER, Justice.

This is a proceeding for a declaratory judgment in equity relating to the respective obligations of plaintiff, Maryland Casualty Company and defendants Hartford Accident & Indemnity Company and Merchants Mutual Insurance Company, under certain automobile liability insurance policies issued by each company. On the findings of fact, the court declared the plaintiff and Merchants were primarily liable on specified policies (1) equally to defend one Stephen Heald in a suit brought against him in Federal court and (2) on a 2/3rds (plaintiff)--1/3rd (Merchants) basis as to damages arising out of said suit up to the limits of the policies. Other provisions of the judgment order are immaterial as the case is here on appeal by the plaintiff.

Two questions are raised by plaintiff. It claims (1) the use of the 1949 Cadillac was not a hazard insured against in the Maryland garage liability policy and (2) Stephen Heald (operator of the Cadillac) was not an insured under the Maryland garage policy.

The following material facts are shown by the findings of the chancellor. The plaintiff issued a garage liability policy to defendant Everett L. Heald which included the so-called omnibus clause with coverage of $50,000. Merchants issued its automobile liability policy to Newell Parker, later deceased, with coverage of $25,000. At the time of his death on December 13, 1960, Mr, Parker owned a 1949 Cadillac which he had parked in the Owl's Club parking lot in St. Albans.

Attorney John Kissane of that City, who had drawn a will for Mr. Parker and was his long-time friend, was employed by Mr. Parker's sister the day following her brother's death to handle the estate for the relatives. Defendant Raymond W. Heald, a funeral director, was also present to discuss funeral arrangement. At that time Raymond Heald told Mr. Kissane he might be interested in purchasing the Parker Cadillac. Mr. Kissane made a telephone call and determined the car was worth $50.00.

Sometime between December 14, and 19, 1960, the steward at the Owl's Club requested Mr. Kissane to remove the Cadillac from the parking lot. Kissane did not know whether the car was in operating condition. On either December 19 or 20, Mr. Kissane contacted Raymond Heald, telling him he could have the Cadillac for $50.00 if he wanted it. Heald replied he wanted to try out the car to be sure it would run before he bought it. Mr. Kissane told Heald he had no objection, and go ahead and try it out but not to operate the vehicle with the Newell Parker plates attached to it. Raymond Heald told Kissane he wanted his son Stephen to try it out when he came home from college for Christmas vacation. Kissane also told Raymond if he didn't want it he would sell to someone else.

On the same day of this talk, Raymond Heald and his brother, Everett Heald, a used car dealer, went to the Owl's Club lot and removed the Parker plates from the Cadillac. On instructions of Everett, dealer plate D-219 issued to him was attached to the car. Each then drove the car for some distance. Everett was very interested in purchasing the Cadillac and selling it at a profit. Raymond intended to replace his 1953 Chevrolet with the Cadillac if he found it satisfactory. It was understood between Raymond and Everett that if Raymond decided to buy the Cadillac it would be through Everett who would then sell the 1953 Chevrolet for Raymond through his used car business, but if Raymond did not keep the Cadillac, then Everett was to purchase it for use or resale in his used car business. Either way, the deal was handled, Everett would make a profit on it.

The car remained in Raymond Heald's possession and was operated some by him but mostly by his son, Stephen, until December 31, 1960. On that date, Stephen while operating the Cadillac to attend a dance, was involved in an accident which resulted in the death of his passenger, Philip H. Arnold, and a suit being brought against Stephen for damages. The dealer plate with the knowledge of Everett Heald had remained on the car until its removal after the accident. At that time Raymond Heald had not indicated to Everett whether or not he was going to keep the Cadillac. Everett did not have any conversation or negotiation with either Mr. Kissane or the executor of the Parker Estate relative to the Cadillac.

Plaintiff first urges that the use of the 1949 Cadillac was not a hazard insured against in its garage liability policy issued to Everett Heald. That portion of the definition of hazards in the policy which is pertinent here reads as follows:

'Division 1--Premises--Operations--Automobiles The ownership, maintenance or use of the premises for the purpose of an automobile dealer, repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the ownership, maintenance or use of any automobile in connection with the above defined operations and the occasional use for other business purposes. * * *'

The court found (Supp. F. 10): 'The use by Stephen Heald of the 1949 Cadillac sedan was incident to the used car business of Everett Heald.' Plaintiff argues this finding is inconsistent with a finding by the court that the operation of the Cadillac by Stephen on December 31, 1960 was for pleasure purposes only and also is not sustained by the evidence. Whether the hazard is covered by the definition depends upon the correctness of the above finding.

Findings must stand if there is any evidence fairly and reasonably tending to support them. Murray v. Webster, 123 Vt. 194, 196, 186 A.2d 89. And we must read the evidence in support of the findings, if reasonably possible, when considered as a whole. Little v. Little, 124 Vt. 178, 182, 200 A.2d 276.

Under the definition of 'hazard', quoted supra, it is clear that the use of any automobile, whether or not it was owned by Everett Heald, is embraced within the definition as long as the use of the car was in connection with Mr. Heald's business as an automobile dealer.

The evidence establishes that Everett Heald's connection with the Cadillac was as an automobile dealer. When Everett and his brother, Raymond, went to remove the Cadillac from the Owl's Club parking lot, he attached his dealer plate to the car. He then drove it, and became very much interested in buying it, knowing the price was $50.00. Everett and his brother, Raymond, made the arrangement that Raymond was to try out the Cadillac and if satisfactory he, Raymond, would buy it. Raymond owned a 1953 Chevrolet which his daughter and son, Stephen, used and the Cadillac was to replace that car. Everett was to have the Chevrolet to sell if Raymond bought the Cadillac and, if he didn't, Everett was to have the Cadillac to sell. Either way, it was a business transaction from which Everett would realize a profit. Further, Everett knew Stephen Heald was coming home from college for Christmas vacation and would be driving the car to try it out. And, Everett's dealer plate remained on the car until after Stephen's accident.

The unlimited control and possession of the Cadillac was placed unconditionally with Raymond Heald, excepting that it was not to be driven with the Parker registration plates attached. Thus, the representative of the owner ratified whatever arrangement Raymond Heald made for the attachment of other registration plates. This was blanket authority to Raymond Heald; and the arrangement he made was one which Mr. Kissane must have anticipated since Raymond could not legally place his own registration plates short of ownership of the vehicle.

Whether or not Everett Heald had authority directly from the actual owner of the Cadillac to put his plates on it and thus take control of the vehicle as he did, is immaterial in the present case since the defined hazard is 'use of any automobile.' And there is no limitation or exclusion, in the definition which necessitates that the use be by the direct authority of the legal owner of the vehicle.

Permitting Everett to attach his dealer plate on the car, which Raymond had the authority to do, shows Raymond unequivocally placed the Cadillac under Everett's control. From what Mr. Kissane said to Raymond, he had the right to do exactly as he did. Raymond testified that if he kept the Cadillac it would be bought through his brother Everett. Everett had the right to place his plates on the car and let them remain there provided it was a business deal. From this, there is a strong inference that the transaction was incidental to and connected with Everett Heald's used car business.

The finding challenged by plaintiff has ample evidentiary support and must stand.

The plaintiff also argues that this finding (Supp. F. 10) is inconsistent with a finding that the use of the Cadillac by Stephen Heald was for pleasure purposes only. We are unable to accept this contention. The use by Stephen was an unrestricted and authorized use. 'Use' must be interpreted...