Miller v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 28 January 1956
• Docket Number: No. 39864,39864
• Citation: 179 Kan. 50,292 P.2d 711
• Parties: Lawrence L. MILLER, Appellee, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 711

292 P.2d 711

179 Kan. 50

Lawrence L. MILLER, Appellee, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.

No. 39864.

Supreme Court of Kansas.

Jan. 28, 1956.

Syllabus by the Court.

1. Findings of fact by a trial court which are supported by substantial competent evidence are not to be disturbed on appellate review.

2. It is a universal rule of law that where a provision of an insurance policy is susceptible of different constructions it is to be construed most favorably to the insured, and if an insurer intends to restrict its coverage it should use language clearly stating its purpose.

3. Plaintiff, a civilian employee of the adjutant general's department of Kansas, was the owner of a 1952 Pontiac automobile. He purchased from defendant insurance company a 'standard policy' of automobile insurance classified as for 'pleasure and business' which insured him against liability for bodily injury and property damage. The policy provided that in the event plaintiff was sued as a result of a collision involving his automobile or one being driven by him defendant company would defend such suit. The policy further provided that the coverage therein specified would extend to plaintiff's driving of other automobiles except to any automobile furnished to him for his regular use and except to any automobile other than a private passenger automobile. Plaintiff, while driving a 1951 Chevrolet 'carry-all' owned by his employer, and while engaged in his employer's business, was involved in a collision with an automobile owned by one D and being driven by D's wife. As a result thereof both D and his wife brought suit against plaintiff. Plaintiff notified defendant company of the suits but it, following an investigation under a reservation of rights, refused to defend the suits for the asserted reasons that at the time of the collision in question plaintiff was driving a vehicle which was furnished for his regular use, and that the vehicle was other than a private passenger automobile, within the meaning of the exclusionary provision of the policy. In order to determine the rights and obligations of the parties plaintiff brought this action for a declaratory judgment.

The record is examined and, all as more fully set out in the opinion, it is held: (1) The findings by the trial court that the vehicle in question was not one furnished to plaintiff for his regular use, and that it was a private passenger automobile, are supported by substantial competent evidence; (2) the conclusion of law to the effect that defendant company was obligated to defend plaintiff against the damage actions filed against him was correct; (3) judgment was properly rendered thereon and (4) defendant's motion for a new trial was properly overrued.

William E. Haney, Topeka, and Howard A. Jones and Charles L. Davis, Jr., Topeka, on the brief, for appellant.

William Hergenreter, Topeka, and Wendell L. Garlinghouse, Warren W. Shaw, Robert R. Jones and John A. Bausch, Topeka, on the brief, for appellee.

PRICE, Justice.

This was an action by an insured against an insurance company for a declaratory judgment to determine the rights and obligations of the parties under an automobile insurance policy.

From an adverse judgment defendant has appealed.

Plaintiff was the owner of a 1952 Pontiac automobile. The insurance policy in question was purchased by him from defendant and was in effect from February 20, 1953, to August 20, 1953. It was a 'standard policy' classified as for 'pleasure and business,' and insured plaintiff against liability for bodily injury to the extent of $15,000 for each person, and against liability for property damage for each accident to the extent of $10,000. It provided that in the event plaintiff was sued as a result of a collision involving his automobile, or one being driven by him, defendant company would defend such suit.

With respect to coverage while driving a vehicle other than the described Pontiac the policy provided:

'V. Use of Other Automobiles

'If the named insured is an individual who owns the automobile classified 'pleasure and business', * * * such insurance as is afforded by this policy for bodily injury liability, for property damage liability * * * with respect to said automobile applies with respect to any other automobile, subject to the following provisions:

'(a) With respect to the insurance * * * the unqualified word 'insured' includes (1) such named insured, * * *.'

'(b) This insuring agreement does not apply:

'(1) To any automobile * * * furnished for regular use to the named insured * * *

'(2) To any automobile while used in the business or occupation of the named insured * * * except a private passenger automobile operated or occupied by such named insured, * * *.'

On April 17, 1953, while driving a 1951 Chevrolet vehicle, commonly known as a 'carry-all,' and which was owned by the adjutant general's department of the state of Kansas, plaintiff was involved in a collision with a vehicle owned by one D and being driven by D's wife. As a result of this mishap D sued plaintiff to recover for damage to his vehicle in the amount of $500, and D's wife sued plaintiff to recover for her personal injuries in the sum of $5,585.

Plaintiff notified defendant insurance company of these actions filed against him, but the company, after making an investigation under a reservation of rights, refused to defend the suits for the asserted reasons that (1) at the time of the collision in question plaintiff was driving a vehicle which was furnished for his regular use by his employer, and (2) that the vehicle being driven by plaintiff at the time in question was other than a private passenger automobile used in the business or occupation of plaintiff, and therefore the exclusionary provisions of the policy, supra, relating to the use of other automobiles, applied, thus relieving defendant company of all obligation to defend the actions.

Because of this dispute between the parties as to their respective rights and obligations under the policy plaintiff filed this action for a declaratory judgment.

The pleadings raised only two questions. The first was whether the Chevrolet vehicle which plaintiff was driving at the time of the collision was one 'furnished for regular use' to him. The second was whether the vehicle was other than 'a private passenger automobile.'

The trial court, after hearing considerable evidence, made findings of fact on the two questions as follow:

'9. That the 1951 Chevrolet automobile being driven by the plaintiff on April 17, 1953 was furnished to the plaintiff by the employer of plaintiff, the Adjutant General of the State of Kansas. That plaintiff used said automobile very seldom, probably not more than 2 or 3 times a year and then only for short trips. That said automobile was not furnished to the plaintiff ...