Michigan Mut. Liability Co. v. Stallings

Citation523 S.W.2d 539
Decision Date16 May 1975
Docket NumberNo. 9809,9809
PartiesMICHIGAN MUTUAL LIABILITY COMPANY, Plaintiff-Respondent, v. Gary W. STALLINGS and Robert Ward, Defendants-Appellants.
CourtCourt of Appeal of Missouri (US)

Fielding Potashnick, Sikeston, James E. Spain, Bloomfield, for defendants-appellants.

Kenneth L. Dement, Sikeston, for plaintiff-respondent.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Michigan Mutual Liability Company, plaintiff-respondent, sought a declaratory judgment to the effect that its Auto-Gard Family Insurance Policy No. 63--2--302066 does not obligate plaintiff to defend a lawsuit brought by defendant-appellant Robert Ward against defendant-appellant Gary W. Stallings or to pay any judgment entered therein.

The defendants admitted that portion of the petition alleging the following: 'On or about July 1, 1972, while both defendants were employed by and on active duty with the Missouri National Guard, defendant Robert Ward was a passenger in a 1945 Dodge three quarter ton truck which was owned by said Missouri National Guard, and which was being operated by defendant Gary W. Stallings in a generally easterly direction over U.S. Highway 60 . . . in Howell County, Missouri, which vehicle then and there allegedly overturned causing defendant Robert Ward certain bodily injuries. Robert Ward has made claim against defendant Gary W. Stallings for damages on account of said alleged accident and alleged injuries. On said date and prior thereto defendant Gary W. Stallings was also employed by one James V. Stallings as an accountant.'

Stallings was the named insured in the policy. The period of the policy included July 1, 1972. The vehicle described in the policy (the 'owned' automobile) was a 1972 Ford.

The petition and trial theory of the plaintiff advanced three independent grounds for a declaration of non-coverage. These grounds are:

1. The 1945 Dodge truck was not a 'non-owned automobile' as that term is defined in the policy.

2. Coverage is excluded under Exclusion 'f.'

3. Even if the Dodge was a 'non-owned' automobile, coverage is excluded under Exclusion 'h(2).'

The following provisions of the policy are germane to the issues on this appeal:

(The company) agrees with the insured, named in the declarations . . .

PART I--LIABILITY
Coverage A--Bodily Injury Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. bodily injury . . . sustained by any person arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury . . . and seeking damages . .

Persons Insured

The following are insureds under Part I:

(b) with respect to a non-owned automobile,

(1) the named insured, . . .

Definitions

'named insured' means the individual named in Item 1 of the declarations . . .;

'insured' means a person or organization described under 'Persons insured'; . . .

'non-owned automobile' means an automobile . . . not owned by or furnished for the regular use of . . . the named insured . . .;

'private passenger automobile' means a four wheel private passenger, station wagon or jeep type automobile Exclusions

The policy does not apply under Part I:

(f) to bodily injury to any fellow employee of the insured injured in the course of his employment if such injury arises out of the use of an automobile in the business of his employer, but this exclusion does not apply to the named insured with respect to injury sustained by any such fellow employee;

(h) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in

(1) the automobile business of the insured or of any other person or organization;

(2) any other business or occupation of the insured, but this exclusion (h)(2) does not apply to a private passenger automobile operated or occupied by the named insured . . .

The trial court, sitting without a jury, entered judgment in favor of the plaintiff and held that the plaintiff's second and third grounds were valid. The evidence presented to the trial court consisted only of the insurance policy itself and the depositions of Ward and Stallings. Those depositions, which were offered by the plaintiff, had been taken in Civil Action 7505, Circuit Court of Scott County, Missouri, Robert Ward, plaintiff, vs. Gary W. Stallings, defendant. In action No. 7505 Ward sought damages for personal injuries sustained by him arising out of the accident of July 1, 1972.

'The deference usually accorded the determination of a factual issue by a trial court because of its better position to judge of the credibility of witnesses appearing before it is not applicable to cases submitted upon depositions and exhibits.' Giokaris v. Kincaid, 331 S.W.2d 633, 635(1) (Mo.1960).

WAS THE DODGE A 'NON-OWNED AUTOMOBILE'?

The parties agree that the Dodge was owned by the Missouri National Guard, and not by Stallings. But that fact, standing alone, is not sufficient to qualify the Dodge as a 'non-owned automobile' as that term is defined in the policy. It is also necessary that the Dodge be 'an automobile not . . . furnished for the regular use of' Stallings. Kern v. Liberty Mut. Ins. Co., 398 F.2d 958, 961(3) (8th Cir. Mo.1968).

Plaintiff's policy contains no definition of the word 'automobile.'

In Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 638(13) (1929) the court stated that the usual, ordinary and common meaning of the word 'automobile' was 'a vehicle containing within its mechanism the motive fuel or means of self-propulsion.' 'Automobile' is the general name adopted by popular approval to denote all forms of self-propelled vehicles for use on the highways and streets, and the term is defined generally as meaning a self-propelled vehicle suitable for use on a street or roadway. 60 C.J.S. Motor Vehicles § 1, p. 152. See 74 A.L.R.2d 1264 (What is an 'automobile' or 'car' within coverage of automobile liability policy?). Thus, the Dodge was an automobile.

Was it 'furnished for the regular use of Stallings'?

In State Farm Mut. Auto. Ins. Co. v. Western Cas. & Sur. Co., 477 S.W.2d 421 (Mo. banc 1972) our Supreme Court considered the applicability of a non-owned automobile clause, quoted marginally. 1

The court quoted the following language from an annotation in 86 A.L.R.2D 937, 940:2 'The purpose of the 'drive other cars' provision in an automobile liability policy is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium.'

The court said that two tests had been used to determine whether a non-owned automobile had been furnished or available for frequent or regular use. One test is based 'solely or at least primarily . . . (on) . . . the purpose for which the non-owned automobile was furnished, rather than on the quantum of its use.' The other test is based on the 'length or type of use rather than purpose for which the car was furnished.'

At p. 424 the court said: '(W)e conclude that we should not limit ourselves either to a test of merely determining notive or purpose or one of simply measuring length and extent of availability of use. Rather, each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or violative of the objective of the 'non-owned automobile' clause.'

The following evidence is found in the uncontradicted testimony of defendants Stallings and Ward contained in their depositions offered by plaintiff. Plaintiff is bound by this testimony. Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190, 193(4) (1936); Riggin v. Riggin, 373 S.W.2d 633, 634(1) (Mo.App.1963).

Ward and Stallings were members of the Missouri National Guard, 1140th Engineering Battalion, Headquarters Co., located at Cape Girardeau, Missouri. This guard unit meets once a month for two days and, during the summer, has a two-week encampment. July 1, 1972, the date of the accident, was the thirteenth day of the encampment. The unit had been encamped at Camp Clark, Nevada, Missouri.

Ward has been in the unit five and one-half years. His rank was E--4, and he was a crane operator. Ward testified that in going from Cape Girardeau to Camp Clark he went in an army vehicle with three other guardsmen and he did some of the driving, although he was not assigned as a driver or assistant driver for that vehicle.

Stallings' rank was E--4. When asked what his primary job was in the National Guard, Stallings replied 'summer camp I handle the refueling of the vehicles.' When asked what was his 'primary M.O.S.' in the National Guard, Stallings replied 'I was a heavy equipment mechanic at the armory; I was a, I don't know what the number is, water purification.'

On the night before the accident Stallings was assigned as driver of the Dodge and Ward was assigned as an assistant driver. At 5:30 a.m. on July 1, Ward 'got in the same vehicle with Stallings because we knew each other and there was another vehicle there with another two people with less rank than us.' The latter personnel drove a dump truck which, according to Ward, was either a two and one-half ton or a five ton truck.

Only Ward and Stallings were in the Dodge on the return trip. The Dodge, which was a three quarter ton army vehicle with a canvas top and 'with doors on the side,' contained some duffle bags and foot lockers of other members of the unit. Ward and Stallings alternated, in two-hour shifts, in driving the Dodge. Ward said there...

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