Tanner v. Pennsylvania Threshermen & FMC Ins. Co.

• Decision Date: 18 October 1955
• Docket Number: No. 12354.,12354.
• Parties: Cora TANNER, Administratrix of the Estate of Hudson Tanner, deceased, Appellant, v. PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

226 F.2d 498 (1955)

Cora TANNER, Administratrix of the Estate of Hudson Tanner, deceased, Appellant, v. PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, Appellee.

No. 12354.

United States Court of Appeals Sixth Circuit.

October 18, 1955.

Harry Berke, Chattanooga, Tenn., for appellant.

Paul Campbell, Chattanooga, Tenn., (Campbell & Campbell, Chattanooga, Tenn., on the brief), for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The appellant brought an action against Mike Zarzour and his brother in a Tennessee state court and recovered judgment for $11,000 damages for the death of her husband, who was killed by a Mercury automobile belonging to and being operated by Louis Zarzour, brother of Mike. To effectuate this award, she then brought suit in the state court against the appellee insurance company based upon an automobile liability policy issued by it to Mike Zarzour, covering a described 1949 Oldsmobile car.

This policy provided, inter alia, for the coverage of "an automobile not owned by the named insured while temporarily used as the substitute for the described automobile while withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction." It contained the further provision: "This insuring agreement does not apply: * * * (2) to any automobile while used in the business or occupation of the named insured or spouse except a private passenger automobile operated or occupied by such named insured, spouse, chauffeur or servant." The policy limited the liability of the insurance company to $5,000 for injury to one person.

Upon the ground of diversity of citizenship, appellee removed the cause to the United States District Court where, at the trial upon conclusion of the introduction of appellant's proof, District Judge Darr directed a verdict in favor of the appellee insurer and filed a twelve-page typewritten opinion wherein he carefully summarized the facts and set forth his reasons for directing judgment for the defendant. His analysis of the facts is supported by the transcript of evidence, and will be briefly recapitulated.

The insured, Mike Zarzour, operated a cafe in Chattanooga, as likewise did his brother, Louis Zarzour, in another place in the same city. Mike's Oldsmobile, covered by the liability policy in issue, had been placed in a repair shop for minor repairs around six o'clock in the evening on the date of the accident. Mike's brother, Louis, with his own Mercury automobile had pushed the insured's car to a garage some two blocks from Mike's restaurant. After driving Mike back to his restaurant, Louis turned the Mercury car over to Mike, who drove to a curb market to get some produce. Twenty or thirty minutes were thus consumed before Mike...