Plaxco v. U.S. Fidelity & Guaranty Co.
| Citation | 166 S.E.2d 799,252 S.C. 437 |
| Decision Date | 24 March 1969 |
| Docket Number | No. 18896,18896 |
| Parties | Lee PLAXCO, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Respondent. |
| Court | South Carolina Supreme Court |
Eddie R. Harbin, Greenville, S.C., for appellant.
Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, S.C., for respondent.
The question to be decided in this case is whether the use by an insured of his automobile battery to crank the engine of his airplane, by connecting the batteries of the two vehicles with 'jumper cables,' constituted a use of the automobile within the meaning of an automobile liability insurance policy which provided coverage for damages 'arising out of the ownership, maintenance or use of any automobile.' We have concluded that it did not.
The automobile liability policy involved was issued by the defendant, United States Fidelity & Guaranty Company, to the plaintiff, Lee Plaxco, and obligated the company 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobile.' In addition, the policy provided that the insurer, with respect to such coverage, 'shall: (a) defend any suit against the insured alleging such * * * destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *.'
The facts are stipulated. On the morning of December 25, 1966, the plaintiff drove his automobile to the Greenville Municipal Airport for the purpose of making a trip in his airplane. The battery in his airplane was either dead or too weak to start the engine. He then drove his automobile under the left wing of the airplane and connected the batteries of the two vehicles by the use of 'jumper cables' so that he could use the automobile battery as a booster to start the airplane engine. When this had been done, he entered the airplane, started its engine, engaged the brakes, and then alighted to disconnect the 'jumper cables,' leaving the airplane engine running. After plaintiff had disconnected one of the cables from the automobile battery and while he was preparing to disconnect the other, the brakes on the airplane failed to hold and it moved forward a short distance, striking and damaging an airplane owned by John H. Hudson, Jr. and Associates, Inc. As the airplane moved forward, the other 'jumper cable' pulled loose from the battery of the automobile. The automobile did not move during the entire incident.
Subsequently, suit was brought against plaintiff by John H. Hudson, Jr. and Associates, Inc. to recover the damages sustained to its airplane. The defendant denied any obligation to defend that action on behalf of plaintiff or to pay any judgment obtained against him on the ground that the damage to the airplane did not arise out of the Use of plaintiff's automobile within the meaning of the foregoing policy provisions. Thereupon, plaintiff instituted the present action seeking a declaratory judgment as to the liability of the defendant under the policy for the damages in question. The lower co...
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