Poole v. Travelers Ins. Co.
| Citation | 179 So. 138,130 Fla. 806 |
| Parties | POOLE v. TRAVELERS INS. CO. et al. |
| Decision Date | 16 December 1937 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Feb. 4, 1938.
Error to Circuit Court, Putham County; Geo. Wm. Jackson, Judge.
Garnishment proceeding by Samuel E. Poole against the Travelers Insurance Company and another. Judgment for the garnishees, and the plaintiff brings error.
Reversed and remanded, with directions.
On Petition for Rehearing.
COUNSEL Hilburn & Merryday, of Palatka, for plaintiff in error.
Marks Marks, Holt, Gray & Yates, of Jacksonville, for defendants in error.
Samuel E. Poole, sued the Gem City Builders' Supply Company for damages for personal injuries received and for expenses consequent thereon, as a result of the careless and negligent manner in which the Gem City Builders' Supply Company through its employee, operated one of its trucks. Plaintiff recovered judgment in the amount of $5,500, together with his costs.
Thereafter S. J. Hilburn, attorney for Samuel E. Poole, made affidavit that plaintiff held a judgment in the amount of $5,500 and costs against the Gem City Builders' Supply Company; that affiant does not believe the defendant has in its possession visible property upon which a levy can be made sufficient to satisfy said judgment; that the Travelers Insurance Company and the Travelers Indemnity Company are indebted to the Gem City Builders' Supply Company, or have its effects or property in their hands, custody or control; and prayed that a writ of garnishment issue to the Travelers Insurance Company and the Travelers Indemnity Company commanding them to appear and answer this affidavit.
The writ of garnishment was issued.
The Travelers Insurance Company and the Travelers Indemnity Company each filed separate answers to the affidavit. Each answer averred 'that at the time of the service of the writ of garnishment upon this corporation in the above entitled action and garnishment proceeding, this corporation was not indebted to the defendant, Gem City Builders' Supply Company, a corporation, nor is it indebted to the said Gem City Builders' Supply Company, a corporation, at the time of the filing of this answer, nor was it indebted to the said Gem City Builders' Supply Company, a corporation, at any time between said periods.' Each answer further averred that said answering garnishee did not have in its hands, possession or control at any of said times any goods, money, chattels, or effects of said defendant; that said answering garnishee does not know of any other person indebted to said defendant, nor does it know of any other person who may have any of the effects of said defendant in his hands.
Plaintiff filed a traverse to each answer, directly traversing and denying the truth of that part of each answer quoted above and then averring that said garnishee was indebted to the said Gem City Builders' Supply Company at the time said writ of garnishment was served on said garnishee, and is still indebted to said defendant, as set forth in the affidavit of plaintiff's attorney.
The attorneys of record for both parties stipulated that the cause be tried before Hon. George William Jackson, circuit judge for the Seventh judicial circuit, without the intervention of a jury, either in term time or in vacation, upon such date as the court may name; that the findings of the judge on issues of fact shall have the same force and effect as the verdict of a jury; and that at the convenience of the court a formal order be entered carrying the stipulation into effect. No such order appears in the record.
After hearing the evidence, the court entered final judgment in the cause, finding the issues of fact in favor of the garnishees, severally, and thereupon entered judgment in favor of the garnishees, and awarded the garnishees their costs.
Motion for new trial was denied.
From the final judgment plaintiff took writ of error.
The material facts of the case are not disputed but are admitted by the respective parties. The truck involved in the accident was not described in the policy of insurance because it was not owned by the Gem City Builders' Supply Company at the time the policy of insurance was issued; but it was later purchased and allowed to be substituted for one of the insured trucks, and is treated by both parties as being covered by the policy of insurance, and a stipulation to that effect was entered upon the record. Attached to the truck in question was a two wheel semi-trailer. The truck and the semi-trailer had hauled a load of lumber from Palatka to Elkton, Fla., had unloaded the lumber at Elkton, was returning empty, and had reched East Palatka on the return trip when the accident occurred. The truck was insured and the semi-trailer was not.
The sole question to be determined is one of law, and is whether either or both of the garnishee insurance companies is or are liable on the policy of insurance because of the fact that, at the time of the accident, the truck, which was insured, was towing a semi-trailer, which was not insured.
The policy of insurance contained the following pertinent provisions:
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'1. Coverage A--Bodily Injury Liability.
'To pay on behalf of the Assured all sums which the Assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury, including death at any time resulting therefrom, accidentally sustained by any person or persons and caused by the ownership, maintenance or use of the automobile.'
'A. Automobile Defined--Two or More Automobiles. Wherever in this Policy the word 'automobile' is used, it shall be held to mean any type of motor vehicle or trailer as described herein; and when two or more automobiles are insured hereunder, the terms of this Policy apply separately to each.
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which the Automobile the Automobile. Serial No. Model.
will be principally
garaged and used.
if Bus.)
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1 1/2 ton Truck Model B-2 Comm. 20.70 11.00
1 1/2 ton Truck Model AA Comm. 20.70 11.00
1 1/2 ton Truck Model AA Comm. 20.70 11.00
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Thus the terms of the oplicy of insurance state that the truck in question was to be used for 'commercial' purposes. Under the definition of 'commercial purposes,' the policy provided that the truck in question shall be insured for the towing of any trailer only when such use is definitely declared and rated. The exception made no reference to the use of any semi-trailer.
Section 1280 (1006) C.G.L. defines the terms trailer and semi-trailer as follows:
"Trailer' as defined in...
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