Maryland Casualty Company v. Marshbank

• Decision Date: 28 October 1955
• Docket Number: No. 11594.,11594.
• Citation: 226 F.2d 637
• Parties: MARYLAND CASUALTY COMPANY v. Robert S. MARSHBANK, Robert S. Marshbank, Jr., a Minor, Charles N. Hoak, Jr., a Minor, Robert H. Stover and Ruth E. Stover, His Wife, Mary Beaver, a Minor, Wayne Shoemaker, Edward Manning, George E. DeVall and Elizabeth J. DeVall, His Wife, John Conn, Robert Washington, Robert H. Stover, Administrator of the Estate of Mary Stover, Deceased.
• Court: U.S. Court of Appeals — Third Circuit

226 F.2d 637 (1955)

MARYLAND CASUALTY COMPANY v. Robert S. MARSHBANK, Robert S. Marshbank, Jr., a Minor, Charles N. Hoak, Jr., a Minor, Robert H. Stover and Ruth E. Stover, His Wife, Mary Beaver, a Minor, Wayne Shoemaker, Edward Manning, George E. DeVall and Elizabeth J. DeVall, His Wife, John Conn, Robert Washington, Robert H. Stover, Administrator of the Estate of Mary Stover, Deceased.

No. 11594.

United States Court of Appeals Third Circuit.

Argued October 6, 1955.

Decided October 28, 1955.

F. Brewster Wickersham, Harrisburg, Pa. (Edward E. Knauss, III., Metzger & Wickersham, Harrisburg, Pa., on the brief), for appellant.

Robert L Myers, III, Lemoyne, Pa. (Myers, Myers & Flower, by Robert L. Myers, Jr., Lemoyne, Pa., for Stovers. William M. Hargest, Jr., Harrisburg, for Robert S. Marshbank and Robert S. Marshbank, Jr. Shelley, Reynolds & Lipsitt, by William W. Lipsitt, Harrisburg, Pa., for Charles N. Hoak, Jr. Thomas C. Zerbe, Harrisburg, Pa., for Mary Beaver, on the brief), for appellees.

Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

The Maryland Casualty Company, of Baltimore, Maryland, brought an action in the District Court for the Middle District of Pennsylvania for a declaratory judgment as to its liability under an automobile liability and physical damage policy which it had issued to Robert S. Marshbank. The controversy with respect to the extent of the liability of the Maryland Casualty Company under the policy arose out of the following factual situation as found by the district court upon ample evidence:

The Maryland Casualty Company issued its automobile liability and physical damage policy, effective from March 21, 1954 to March 21, 1955, to Robert S. Marshbank, of Harrisburg, Pennsylvania, as the named insured with respect to an automobile owned by him. On April 10, 1954 the policy was amended by endorsement so as to cover the operation of the automobile by persons under 25 years of age.

On May 15, 1954 Marshbank's son, Robert S. Marshbank, Jr., in the presence of Charles N. Hoak, Jr., requested permission of his father to use the automobile in question for the purpose of enabling him and Charles to take Mary Stover and Mary Beaver to a moving picture theatre. Marshbank then and there gave his permission for the use of his automobile for that purpose. At the time the permission was given nothing was said as to who should drive the car but Marshbank left it up to his son to determine who should drive, knowing that Charles, as well as his son, was a licensed driver.

Thereafter the two young men, accompanied by the two girls as passengers, drove toward Carlisle, Pennsylvania, intending to go to a moving picture theatre at the latter place. At some time after leaving his home Robert, Jr. turned the driving of the automobile over to Charles and at 8:15 P. M. while Charles was driving the automobile westwardly in Cumberland County about two miles east of Carlisle a collision occurred involving the Marshbank automobile in which they were riding and two other automobiles. As a result of the collision all four occupants of the Marshbank automobile were injured and one of them, Mary Stover, subsequently died.

The insurance policy in question contained the following clause:

"III. Definition of Insured With respect to the insurance for bodily injury liability and for property damage liability the unqualified word `insured\' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *"

Following the accident a controversy arose as to whether Charles was entitled to the protection of the policy as an additional insured within the meaning of the foregoing policy definition of "insured". It was to determine its liability under the policy with respect to Charles that the present declaratory judgment action was instituted by the Maryland Casualty Company as plaintiff. The plaintiff joined as defendants Robert S. Marshbank, Robert S. Marshbank, Jr., Charles N. Hoak, Jr. and all the other persons who were involved in the accident.

The district court concluded that Charles was an additional insured within the provisions of the insurance policy in question and entered a judgment so declaring. 128 F.Supp. 943. From the judgment thus entered the plaintiff, Maryland Casualty Company, has taken the appeal now before us. The question which this appeal presents is whether the district court was right in so declaring. The answer to that question turns upon whether the use of the automobile which Charles was making at the time of the accident was with the permission of the named insured, Marshbank, within the meaning of the definition of "insured" contained in the policy. We think that the district court rightly decided that Charles' use of the automobile was with Marshbank's permission and that he was, therefore, entitled to the protection of being an additional insured under the policy in connection with the accident which occurred on May 15, 1954.

As the basis for a contrary conclusion the plaintiff seeks to read the term "use of the automobile" as contained in the policy definition as the equivalent of "operation of the automobile" and on this premise it argues that Marshbank did not give permission to Charles to operate his automobile. We think, however, that the premise is unsound and that the plaintiff is attempting to create an ambiguity in the language of the policy definition in order by construction to resolve it in its favor. To us the language of the clause seems so clear as to require no construction. The fallacy in the plaintiff's position is that the words "use" and "operation", which it seeks to equate as synonymous, are in this setting words of quite different meaning. For the "use" of an automobile by an individual involves its employment for some purpose or object of the user while its "operation" by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another.¹

It is only the actual or particular use of the automobile at the time of the...