National Indem. Co. v. Ewing

• Court: Maryland Supreme Court
• Writing for the Court: Before HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ., and THOMAS J. KEATING, Jr.; HENDERSON
• Citation: National Indem. Co. v. Ewing, 235 Md. 145, 200 A.2d 680 (Md. 1964)
• Decision Date: 01 June 1964
• Docket Number: No. 342,342
• Parties: NATIONAL INDEMNITY CO. v. John Marth EWING et al.

Page 145

235 Md. 145

200 A.2d 680

NATIONAL INDEMNITY CO. v. John Marth EWING et al.

No. 342.

Court of Appeals of Maryland.

June 1, 1964.

David K. Ebersole, Jr., and Herbert Burgunder, Jr., Baltimore (F. Gray Goudy, Baltimore, on the brief), for appellant.

Ernest M. Thompson, Easton (Thomas B. Finan, Atty. Gen. and R. Randolph Victor, Baltimore, on the brief), for appellees.

Before HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ., and THOMAS J. KEATING, Jr., J., specially assigned.

HENDERSON, Judge.

An insurance company appeals from a declaratory judgment requiring it to pay a judgment recovered against its insured, John Marth Ewing, on the ground that the injuries sustained did not arise out of the use of the automobile covered. William H. Bridge brought suit against Ewing and Sidney Howard George, who was uninsured, and recovered judgment for $10,000 against both. National Indemnity Company disclaimed liability. In the policy issued to Ewing covering his 1956 Oldsmobile it was provided that the insurer would pay 'all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.' The disclaimer was based on the claim that Bridge's injuries did not arise out of the use of the Oldsmobile.

In the declaratory judgment action the record of the trial resulting in the judgments was put in evidence by stipulation. Certain conflicts in the testimony were resolved by the jury's findings on issues submitted, and by the stipulations of the parties. The facts may be briefly summarized. On the evening of December 29, 1960, Ewing, a resident of Easton, Maryland, was at a tavern about ten miles northeast of Easton and did considerable drinking. Shortly after midnight he drove home with his friend Bridge in the back seat. There was snow on the ground but the road had been plowed out leaving snowbanks on each side. When Ewing had reached a point about two miles from Easton, he had an accident. The road at that point ran east and west, and was about 24 feet wide. According to the police officer who investigated, his car ran off the paved portion of the road on the north side, travelled about 100 feet on the shoulder or snowbank, skidded about 50 feet further, struck and broke a telegraph pole, crossed the road and finally came to rest with its front in the snowbank on the south side. Shortly thereafter a motorist named Houston, bound towards Cordova with a friend named Warner, came up and saw the car partially blocking his lane, and a man, apparently the driver, standing in the road. At Houston's suggestion, Ewing backed his car out of the snowbank and parked it on the north side. Houston saw that the car was damaged but operable, and suggested that Ewing 'try to make it' to Easton. He noted that the right rear door was open.

Houston then started to drive on, but when he had gone thirty or forth feet he heard a noise in the snowbank on the north side and asw a man sitting there. Houston stopped and assisted the man, who proved to be Bridge, to get to his feet. Apparently Bridge was not injured, although Houston testified he was mumbling and incoherent and was 'either rung up or tired.' Ewing came up and started to lead Bridge to the parked Oldsmobile, down the center of the road. Evidently Bridge had been thrown out of Ewing's car before it struck the pole.

Houston went back to his car and, when he saw the headlights of two cars approaching from the east, blinked his headlights. The first car slowed down and swerved around the two men in the road. The second car struck them at a point about 10 feet behind the parked Oldsmobile, and then collided with the rear of the parked car. The driver, George, had been drinking. Houston called the State police who appeared promptly with an ambulance. Houston estimated that about twenty-five minutes elapsed between the time he first came on the scene and the time the men were run down.

The jury found that Ewing was negligent in the operation of his car in running off the road, but that Bridge was not injured in the first accident; that George was negligent in striking him; that Ewing was guilty of concurrent negligence in the second accident; and that Bridge was not negligent. Under the court's instructions the judgment against Ewing was based on the theory that Ewing negligently conducted Bridge down the center of the road while Bridge was not mentally accountable for his own actions. The appellant argues that there was no causal connection between Ewing's first negligent action, which did no injury to Bridge, and the two negligent acts that brought about the injuries upon which the judgments were predicated.

The case turns upon the proper construction of the quoted language of the policy as applied to the facts stated. There appears to be no prior Maryland case construing the words 'arising out of' in a policy of this type. We have given a broad construction, however, to...