Travelers Indemnity Company v. Dees, Civ. A. No. 8254.

Decision Date17 November 1964
Docket NumberCiv. A. No. 8254.
Citation235 F. Supp. 515
CourtU.S. District Court — District of South Carolina
PartiesThe TRAVELERS INDEMNITY COMPANY, Plaintiff, v. Samuel T. DEES, d/b/a Dees Used Cars, South Carolina Insurance Company, James M. Foxworth, Eugene E. Covington, Katherine Crumpler and Helen G. Crumpler, Defendants.

Shepard K. Nash, and John S. Wilson, Sumter, S. C., for plaintiff.

Joseph L. Nettles, Columbia, S. C., for defendant South Carolina Ins. Co.

HEMPHILL, Chief Judge.

Action for declaratory judgment by plaintiff The Travelers Indemnity Company (hereinafter referred to as "Travelers") seeking to have this Court determine the rights of the parties under the terms of a contract of insurance issued by Travelers to defendant James M. Foxworth, and under an insurance contract issued by defendant South Carolina Insurance Company, (hereinafter referred to as "South Carolina") to defendant Samuel T. Dees. This matter was heard by the Court without a jury at Florence, South Carolina, on October 15, 1964.

On September 28, 1962, Travelers issued to Foxworth a family automobile policy No. LP6539899 in which he was the named insured, and a 1956 Cadillac and a 1956 Nash was therein described as the "owned automobiles". The Travelers' policy contains the following provision:

"(Clause 22) Other Insurance. If the insured has other insurance against a loss covered by Part I of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance." (Emphasis supplied)

Defendant S. C. Insurance Company on January 10, 1963, issued to defendant Samuel T. Dees its garage liability policy No. 2388, in which Dees (a used car dealer) was designated the named insured. The policy insured all automobiles owned by Dees as therein provided and additional insureds under said policy included: "Any person while using, with the permission of the named insured, an automobile to which the insurance applies * * * provided such person's actual operation * * * is within the scope of such permission."

On July 20, 1963, while both policies were in force, defendant Foxworth obtained a 1960 Lincoln automobile from defendant Dees and became involved in a wreck at Myrtle Beach, S. C., in which defendants Covington, Katherine Crumpler and Helen G. Crumpler received injuries. At least two actions in the State Court have been instituted against Foxworth as a result of said accident with the Lincoln automobile. Plaintiffs in the State Court actions for damages have been made parties defendant in this litigation.

Travelers contends that the policy of defendant South Carolina provides primary coverage because the Lincoln automobile was a "non-owned" automobile insofar as it was related to plaintiff's policy and to defendant Foxworth. South Carolina contends it has no obligation under its policy because possession of the Lincoln had been transferred to Foxworth "pursuant to an agreement of sale" which excludes Foxworth as an insured under the policy. It relies on the quoted exclusion under Part I of its policy.1

The primary issue for determination is the question of ownership of the 1960 Lincoln driven by Foxworth at the time of the accident.

In the treatment of the issue involved here, once it has been determined that the Lincoln operated by Foxworth at the time of the collision (which collision in actuality precipitated this controversy) was a "non-owned" automobile, except for the "excess" clause, designated Clause 22 under the "conditions" made a part of the Travelers policy, we must of necessity reconcile the two sections of the policy because under the exclusions designated as applicable to Part I of the policy, there is a clause which reads as follows:

"(h) to a non-owned automobile while used (1) in the automobile business by the insured or (2) in any other business or occupation of the insured except a private passenger automobile operated or occupied by the named insured or by his private chauffeur or domestic servant, or a trailer used therewith or with an owned automobile."

The defendant Dees testified that he was a used car dealer in Sumter, S. C.; that he owned the 1960 Lincoln and had it on his car lot for sale for several months prior to July 20, 1963. He and defendant Foxworth were well acquainted and lived about one block from each other. On Saturday, July 20, 1963, Foxworth came to the used car lot and discussed trading his Cadillac for the 1960 Lincoln. By agreement Foxworth drove the Lincoln to his home to see if his wife liked it and was gone a very short while. On his return he stated that his wife liked the car and Dees made him a "trade-in difference" offer for a trade between the two cars. Foxworth did not accept the figure but stated that it was too much, whereupon the parties agreed that Foxworth would drive the Lincoln to Myrtle Beach over the weekend and on the following Monday morning would either buy the car or return it. Dees stated that he gave Foxworth a paper on which was written that "the car was being driven by Foxworth until Monday and that he would either bring the car back or trade it, one or the other" but that the paper was not intended to be an invoice or bill of sale. However it was written on the same form that Dees used for his bills of sale. Dees testified that no figure or price was written in on the paper which he gave Foxworth and that Foxworth did not sign the paper. Dees testified that his reason for giving Foxworth the paper was so that he would have something to show a highway patrolman if he had an accident with the Lincoln, since the Lincoln carried Florida license tags. Dees further testified that Foxworth paid no money on the Lincoln and that Dees was prepared to cut the price about $50.00 more in order to trade with Foxworth and was confident that they would be able to get together on the price. Dees stated that Foxworth left his Cadillac on Dees' lot when he took the Lincoln.

Foxworth testified substantially the same as Dees as to the transaction except that he denied leaving his Cadillac with Dees over the weekend. He stated that after he drove the Lincoln from Dees' car lot, someone at his direction went back and drove the Cadillac from the car lot to his home. Foxworth admitted telling the highway patrolman after the wreck that he had purchased the Lincoln...

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2 cases
  • Lujan v. Gonzales, 794
    • United States
    • Court of Appeals of New Mexico
    • July 21, 1972
    ...(1961); Pleasant Valley Lima Bean Grow. v. Cal-Farm Insurance Co., 142 Cal.App.2d 126, 298 P.2d 109 (1956); Travelers Indemnity Company v. Dees, 235 F.Supp. 515 (E.D.S.C.1964). That is not the issue here. In this case, Farmers had the primary insurance and it promptly and actively defended ......
  • Murry v. Bankers Fire & Marine Ins. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 26, 1967
    ...3 Cir., 179 So.2d 528; Safeco Insurance Co. of Amer. v. Pacific Indemnity Co., 66 Wash.2d 38, 401 P.2d 205 (1965); Travelers Indemnity Co. v. Dees, 235 F.Supp. 515 (D.C.1964); 7 Am.Jur.2d Automobile Insurance, Section We therefore find to be without merit Aetna's suggestion that the vehicle......

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