Sunshine Mutual Ins. Co. v. Addy

• Decision Date: 09 April 1951
• Docket Number: No. 9134,9134
• Citation: 47 N.W.2d 285,73 S.D. 595
• Parties: SUNSHINE MUT. INS. CO. v. ADDY et al.
• Court: South Dakota Supreme Court

Page 285

47 N.W.2d 285

73 S.D. 595

SUNSHINE MUT. INS. CO. v. ADDY et al.

No. 9134.

Supreme Court of South Dakota.

April 9, 1951.

Rehearing Denied May 29, 1951.

Blaine Simons, T. R. Johnson Sioux Falls, for defendant and appellant.

Bielski, Elliott & Lewis, Sioux Falls, for petitioner in intervention and appellant.

Caldwell & Burns, Roy D. Burns, Howard B. Crandall, and R. N. Swark, all of Sioux Falls, for plaintiff and respondent.

PER CURIAM.

This is an action to obtain a declaratory judgment as to the coverage of an insurance policy. By its terms, plaintiff agreed to indemnify defendant Addy against claims for damages for bodily injuries caused by and arising out of the ownership, maintenance or use of the motor vehicle described in the policy. The truck described therein was involved in an accident as appears from our opinion rendered on a prior appeal and reported in 72 S.D. 634, 38 N.W.2d 406, 10 A.L.R.2d 670.

Paragraph VI of the policy provides that it applies only to accidents occurring while the automobile is owned, maintained and used for the purposes as applicable thereto in the declarations.

It is stated in Item 5 of the declarations: 'The purposes for which the automobile is to be used are farm use (a) The term 'pleasure and business' is defined as personal, pleasure, family and business use. (b) the term 'commercial' is defined as use--principally in the business occupation of the named insured as stated in Item 1, including occasional use for personal, pleasure, family and business purposes. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.' The business or occupation of the insured, as appears in Item 1, is 'Farmer'.

The coverage of an automobile liability policy is limited to the uses designated in the policy. The cases to this effect are cited in the opinion rendered on the prior appeal. Sunshine Mutual Ins. Co. v. Addy, supra. The trial court determined from the evidence that the use of the truck at the time of the accident was a 'farm use' within the terms of the policy. The sufficiency of the evidence to sustain this finding was the question before this court on the prior appeal. The majority opinion rejected the contention that the evidence sustained this finding and reversed the judgment below. The facts were not undisputed and upon a retrial additional testimony was submitted. It is clear that such evidence would not have justified the trial court in view of the prior decision in holding that the truck in question was being used for a farm purpose.

We are now concerned with the further contention that under a proper interpretation of Item 5 above quoted the word 'commercial' includes farming activites and that the occasional use of the truck for other than 'farm use' came within the coverage of the policy.

The following in Item 5 is printed: 'The purpose for which the automobile is to be used are _____'. In the blank are typed the words 'farm use'. The words 'pleasure and business' or 'commercial' would normally be inserted. The definition of the term 'commercial' was not intended to exclude the use of other phrases, but a make plain that occasional use of an insured vehicle not connected with the business occupation of its owner was within the coverage of the policy. See Little-field v. Phoenix Indemnity Ins. Co., 86 N.H. 87, 163 A. 420; ...