Textile Ins. Co. v. Lambeth
| Decision Date | 08 April 1959 |
| Docket Number | No. 600,600 |
| Citation | 108 S.E.2d 36,250 N.C. 1 |
| Court | North Carolina Supreme Court |
| Parties | TEXTILE INSURANCE COMPANY, v. Callie R. LAMBETH and Carlee W. Melton, Executrices of the Estate of Casper A. Warner, d/b/a Warner's Transfer and Storage Company, Ruth M. Warner, Administratrix of the Estate of Winfred Alan Warner, Deceased, Jesse Misenheimer, Administrator of the Estate of Gary Wayne Misenheimer, Deceased, L. G. DeWitt, Inc., Nancy Irene Jett, Administratrix of the Estate of Thomas Clifton Jett, Deceased. |
Sapp & Sapp, Greensboro, for plaintiff, appellant.
Jordan, Wright & Henson, Greensboro, and Martin & Whitley, High Point, for Callie R. Lambeth and Carlee W. Melton, Executrices of the Estate of Casper A. Warner, d/b/a Warner's Transfer and Storage Co., Ruth M. Warner, Administratrix of the Estate of Winfred Alan Warner, Deceased, defendants, appellees.
Morgan, Byerly & Post, High Point, for Jesse Misenheimer, Administrator of the Estate of Gary Wayne Misenheimer, Deceased, defendant, appellee.
Pittman, Webb & Lee, Rockingham, for L. G. DeWitt, Inc., Nancy Irene Jett, Administratrix of the Estate of Thomas Clifton Jett, Deceased, defendants, appellees.
Upon waiver of jury trial as provided in G.S. § 1-184, the court's findings of fact have the force and effect of a verdict by jury. Cauble v. Bell, N.C., 107 S.E.2d 557, and cases cited.
Was the evidence sufficient to support the court's findings of fact? If so, are the findings of fact sufficient to support the court's conclusions of law and judgment?
Re: Policy No. AP 62156.
An endorsement attached to this policy provides: 'In consideration of the premiums charged it is understood and agreed that the vans and trucks covered hereunder are used exclusively within a radius of fifty (50) miles of the limits of the City or Town where such vans or trucks are principally garaged.'
The court found as a fact that the collision occurred 57.08 miles from the city limits of High Point, North Carolina, where, according to the policy, the collision truck was to be 'principally garaged.'
This policy afforded no protection to Warner in respect of the collision truck when operated more than fifty miles from the city limits of High Point, North Carolina. Wright v. Mercury Insurance Co., 244 N.C. 361, 368, 93 S.E.2d 438, and cases cited. Indeed, the Warner defendants make no contention that this policy protects them in respect of claims arising out of the April 10, 1957, collision.
Whether plaintiff is entitled to a judgment of nonliability under this policy as to defendants Misenheimer, Jett and DeWitt depends upon the legal significance of another endorsement whereby plaintiff certified that it had issued to Warner ' (Our italics.) A certificate of insurance, setting forth said endorsement, was filed by plaintiff with the North Carolina Utilities Commission.
Section 19 of the North Carolina Truck Act of 1947, now codified as G.S. § 62-121.23, provides: 'No certificate or permit shall be issued to any motor carrier, or remain in force until such carrier shall have procured and filed with the Commission such security for the protection of the public as the Commission shall by regulation determine and require.'
As to this policy, the court, based on the italicized sentence, concluded as a matter of law that plaintiff was not entitled to a judgment of nonliability as to defendants Misenheimer, Jett and DeWitt. The judgment proper contains no provision relating to this policy except the (first) sentence wherein it was adjudged 'that the plaintiff is not entitled to the relief prayed for in the complaint. ' Thus, the court refused to adjudge plaintiff's nonliability under this policy; and the judgment implies that both policies afford protection to defendants Misenheimer, Jett and DeWitt.
In Flythe v. Eastern Carolina Coach Co., 195 N.C. 777, 783, 143 S.E. 865, where no such endorsement was involved, this Court held that the insurer was not liable for claims arising out of a collision that occurred when the insured bus was being iperated on a special trip (from Raleigh to Davidson College) when the policy provided that the bus was to be used in carrying passengers between Wilmington and Charlotte, on a fixed schedule, over North Carolina highways.
Here, the North Carolina Utilities Commission had issued to Warner a certificate of public convenience and necessity whereby Warner was authorized as an irregular route common carrier to transport household goods 'between all points and places throughout the State of North Carolina. ' Unquestionably, if the collision had occurred when the collision truck was engaged in the intrastate transportation of household goods as authorized by Warner's certificate of public convenience and necessity, Policy No. AP 62156, endorsed as aforesaid, would have afforded protection to defendants Misenheimer, Jett and DeWitt irrespective of the rights and liabilities of plaintiff and Warner inter se.
However, the court found as a fact that, when the collision occurred, the collision truck was engaged in the transportation of household goods from High Point, North Carolina, to Miami, Florida, an interstate operation. Warner's authority to operate the collision truck for the transportation of household goods in interstate commerce was conferred solely by its I.C.C. franchise, not by the certificate of public convenience and necessity issued to Warner by the North Carolina Utilities Commission. The North Carolina Utilities Commission did not purport to authorize, nor did it have legal power to authorize, interstate truck operations. As to such operations, the Interstate Commerce Commission had full and exclusive authority.
In Putts v. Commercial Standard Insurance Co., Tenth Circuit, 173 F.2d 153, the coverage of the policy was limited to operations within fifty miles of Deming, New Mexico. The collision occurred more than fifty miles from Deming while the truck was en route to Dallas, Texas. The insured held permits from the Corporation Commission to operate as a contract motor carrier of goods for hire. Endorsements extending coverage to protect the public while operating under such permits were required and issued. However, when the collision occurred the truck was engaged in transporing the insured's own merchandise for use in the insured's own business. Since the truck was not being operated under either permit at the time of the accident, if was held that insured's liability to third parties was not within the coverage of the policy.
It is generally held that a policy endorsement, issued to comply with the requirement of a state agency such as the North Carolina Utilities Commission, will provide coverage to the public only in respect of operations authorized by the insured's permit or certificate of public convenience and necessity. Foster v. Commercial Standard Ins. Co., Tenth Circuit, 121 F.2d 117; Simon v. American Casualty Co. of Reading, Pa., Fourth Circuit, 146 F.2d 208; Sordelett v. Mercer, 185 Va. 823, 40 S.E.2d 289; Hawkeye Casualty Co. v. Halferty, Eighth Circuit, 131 F.2d 294; Travelers Ins. Co. v. Caldwell, Eighth Circuit, 133 F.2d 649; Frohoff v. Casualty Reciprocal Exchange, Mo.App., 113 S.W.2d 1026; Drake v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 265 Ala. 444, 92 So.2d 11; Smith v. Massachusetts Bonding and Insurance Co., Ohio Com.Pl., 142 N.E.2d 307. Compare Kietlinski v. Interstate Transportation Lines, 3 Wis.2d 451, 88 N.W.2d 739.
The underlying idea is expressed by Circuit Judge Northcott in Simon v. American Casualty Co. of Reading, Pa., supra , as follows: 'The purpose of the provision of the Public Service Commission requiring the attachment, to any accident policy issued in the State of West Virginia, of (M. C. Form 13) was to assure the existence of coverage whenever a vehicle was being used in the business for which a permit was required, irrespective of any violations by the insured, which otherwise would cause the coverage to be non-existent. ' (Our italics.)
In our opinion, the endorsement issued by plaintiff to comply with the requirements made by the North Carolina Utilities Commission in respect of operations under its certificate of convenience and necessity does not extend the policy coverage so as to provide protection to third persons in respect of operations which the North Carolina Utilities Commission neither authorized nor was empowered to authorize.
For the reasons stated, we reach the conclusion that, with reference to Policy No. AP 62156, plaintiff was entitled to a judgment of nonliability as to all defendants. Plaintiff's assignment of error, based on the court's failure to so adjudge, is sustained. Accordingly, the judgment should be modified so as to contain an express...
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