Peirson v. American Hardware Mut. Ins. Co.

Decision Date25 February 1959
Docket NumberNo. 170,170
Citation249 N.C. 580,107 S.E.2d 137
PartiesS. PEIRSON v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY.
CourtNorth Carolina Supreme Court

Dickens & Dickens, Scotland Neck, for plaintiff appellee.

Battle, Winslow & Merrell, Rocky Mount, for defendant appellant.

RODMAN, Justice.

The rights and obligations of the parties are fixed by the insuring provision of the policy which provides protection for liability resulting from: '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 and the use for non-business purposes of (1) any automobile owned by or in charge of the named insured and used principally in the above defined operations and (2) any automobile owned by the named insured in connection with the above defined operations for the use of the named insured, a partner therein, an executive officer thereof or a member of the household of any such person.'

We have neither the right nor the desire to make contracts for litigants. When controversy arises as to the meaning of a contract of insurance, we must interpret it. If the language used is ambiguous and susceptible to two different interpretations, that interpretation is given which is most favorable to the insured. If, however, the language is plain and unambiguous, we must give effect to the language which the parties selected to create the asserted rights and obligations. The words used are given their ordinary, accepted meaning unless it is apparent another meaning is intended, and each is given effect. The object of interpretation should not be to find discord in differing clauses, but to harmonize all clauses if possible. Rivers v. State Capital Life Insurance Co., 245 N.C. 461, 96 S.E.2d 431; Scarboro v. Pilot Life Ins. Co., 242 N.C. 444, 88 S.E.2d 133, 54 A.L.R.2d 407; Pruitt v. Great American Ins. Co., 241 N.C. 725, 86 S.E.2d 401; McDowell Motor Co. v. New York Underwriters Ins. Co., 233 N.C. 251, 63 S.E.2d 538; Gant v. Provident Life & Accident Ins. Co., 197 N.C. 122, 147 S.E. 740; McCain v. Hartford Livestock Ins. Co., 190 N.C. 549, 130 S.E. 186.

We examine the quoted insuring provisions in accord with established principles. It is apparent that liability is imposed for injuries resulting from the use of an automobile in either of two events: (1) where the automobile is used principally in the garage business even though not used for that purpose when the injury is inflicted; (2) when the automobile produces injury as a result of a use incidental to the garage business.

By stipulation of the parties the automobile was not being used for business purposes when Mrs. Peirson was injured. It is also stipulated that the automobile was not used principally in the business of automobile dealer, repair shop, service station, storage, or public parking place. On the contrary, it is established that the use for that purpose was only occasional and the principal use was in connection with plaintiff's mercantile business.

It is clear, therefore, the operation of the automobile when Mrs. Peirson was injured was not protected unless, as plaintiff contends, the operation of plaintiff's individual business of selling retail hardware, building materials, supplies, feeds, fertiliaer, hunting and fishing equipment, and similar farm and home supplies and appliances was, in the language of the policy, an operation 'necessary or incidental' to the business of 'automobile dealer, repair shop, service station, storage garage or public parking place.'

The facts stipulated establish that the mercantile business operated by plaintiff is neither necessary nor incidental to the business of servicing, repairing, or storing motor vehicles.

Clearly, neither business is necessary to the operation of the other if the word 'necessary' is to be given its ordinary, accepted meaning of 'A thing that is necessary or indispensable to some purpose; something that one cannot do without; a requisite, an essential. ' Storm v. Town of Wrightsville Beach, 189 N.C. 679, 128 S.E. 17, 18.

Courts have frequently been called upon to interpret the word 'incidental.' In The Robin Goodfellow, 9 Cir., 20 F.2d 924, 925, it is said: "Incidental,' obviously, means depending upon or appertaining to something else as primary * * *. Lord Dunevin in Trustee of Harbor of Dundee...

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25 cases
  • Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co.
    • United States
    • North Carolina Supreme Court
    • March 11, 1970
    ...with the sense in which they are used in ordinary speech, unless the context clearly requires otherwise. Peirson v. American Hardware Mutual Insurance Co., 249 N.C. 580, 107 S.E.2d 137. If such a word has more than one meaning in its ordinary usage and if the context does not indicate clear......
  • McLeod v. Nationwide Mut. Ins. Co.
    • United States
    • North Carolina Court of Appeals
    • June 21, 1994
    ...a question of fact as to whether the Pontiac was being used in Sanford Toyota's business. See, e.g., Peirson v. Insurance Co., 249 N.C. 580, 583-85, 107 S.E.2d 137, 138-40 (1959) (even though vehicle used occasionally in garage business, no coverage under garage policy for garage owner's us......
  • Wake County Hosp. System v. National Cas. Co.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • October 22, 1992
    ...another meaning was intended. Williams v. Nationwide Mut. Ins. Co., 269 N.C. 235, 152 S.E.2d 102 (1967); Peirson v. American Hardware Mut. Ins. Co., 249 N.C. 580, 107 S.E.2d 137 (1959). Insurance policies should be given a reasonable interpretation, and if they are not ambiguous, they shoul......
  • Holcomb v. U.S. Fire Ins. Co., 8017SC878
    • United States
    • North Carolina Court of Appeals
    • June 16, 1981
    ...should not be to find discord in differing clauses, but to harmonize all clauses if possible." Peirson v. Insurance Co., 249 N.C. 580, 583, 107 S.E.2d 137, 139 (1959). One reading of the two clauses that would give meaning to both would be to construe Exclusion 1 as excepting from coverage ......
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