U.S. Fidelity & Guaranty Co. v. Stafford, 46331

• Decision Date: 11 October 1971
• Docket Number: No. 46331,46331
• Citation: 253 So.2d 388
• Court: Mississippi Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. Mrs. Y. C. STAFFORD.

Page 388

253 So.2d 388

UNITED STATES FIDELITY & GUARANTY CO. v. Mrs. Y. C. STAFFORD.

No. 46331.

Supreme Court of Mississippi.

Oct. 11, 1971.

Threadgill & Smith, Gary L. Geeslin, Columbus, Harvey S. Buck, West Point, for appellant.

Tubb & Stevens, West Point, Burgin, Gholson, Hicks & Nichols, Columbus, for appellee.

BRADY, Justice.

This is an appeal from the Circuit Court of Clay County, Mississippi, wherein the jury found the appellant liable under its insurance contract to appellee in the amount of $5,245.82. From that judgment this appeal On January 10, 1969, a 1962 Chevrolet Impala automobile, legally owned and registered to Roy Plunkett, an adult resident of Clay County, Mississippi, was being driven by one C. B. Thompson, Jr., eighteen years of age. Roy Plunkett's son, Wayne, aged sixteen years, was seated on the right front seat of the automobile when the car struck and killed John Wayne Foreman, seventeen years of age, on an abandoned air strip in Columbus, Mississippi, while drag racing with another automobile owned by Mike Garnett. The race took place in Lowndes County, Mississippi, just southeast of Columbus.

is prosecuted by the defendant below, United States Fidelity & Guaranty Company. A concise statement of the facts follows.

The testimony reveals that on January 10, 1969, the night of the accident, Wayne Plunkett, the son of Mr. Roy Plunkett, along with C. B. Thompson, Jr., had first raced the automobile on the Barton Ferry Road near West Point. They raced the cars only once there and then left for the Columbus 'drag strip.' The 'drag strip' was not in operation due to the fact that it was approximately 10:00 o'clock at night. The boys took turns; Wayne Plunkett raced twice and then C. B. Thompson, Jr. also raced the Plunkett automobile twice. It was on his second race that the flagman, John Wayne Foreman, was struck and killed.

The record reveals that the insured, Mr. Roy Plunkett, also owned, in addition to the 1962 Chevrolet Impala, a 1966 Chevrolet. The record reveals that the 1962 two-door hardtop Impala super sport automobile had a 300 horsepower, 327 cubic inch Chevrolet engine and had a racing cam and solid lifters, and had a four speed Hertz shift, as well as a four barrel AFB carburetor. The record verifies that although Mr. Plunkett denied knowledge of the powerful motor and the Impala's racing parts, nevertheless he testified that he had the four speed shift installed because three other speed shifts had been torn up. Other changes that had been made to the Plunkett automobile to make it a racing car were the mag wheels which had been purchased, and Roy Plunkett admitted he helped Wayne purchase the mag speed wheels, and place them on the automobile. The record clearly establishes that the car could run very fast and had quick acceleration and that it was capable of speeds in excess of those on the speedometer. Wayne admitted that his speedometer registered only 120 MPH and he could not say whether it could run 130 to 135 MPH.

As a result of the accident in which John Wayne Foreman was struck and killed, the Circuit Court of Lowndes County, Mississippi, entered a directed verdict in favor of the appellee against C. B. Thompson, Jr., and the jury returned a verdict in the sum of $5,000, for which a judgment was entered. An execution on the judgment against Thompson would be unremunerative. Now, Mrs. Stafford sues the appellant insurer of the Plunkett car.

The appellant's family automobile liability insurance policy which Roy Plunkett obtained on the 1962 Chevrolet Impala was in full force and effect on the date of this accident. However, the appellant denied coverage and asserted that the operation of the vehicle at the time of the death of John Wayne Foreman was under the control of C. B. Thompson, Jr. who was operating it without the express or implied permission of the legal owner, Roy Plunkett, and therefore the appellant had no coverage responsibility to the Stafford judgment.

This is a brief statement of the facts of the case. Other facts will be added that are needed when dealing with appellant's assignment of errors.

The appellant assigned nine errors which it claims were committed by the trial court. We will not deal with them necessarily in the sequence in which appellant has assigned them but will consider them in the light of their importance as urged. The The fundamental issue is simply who precisely is covered or protected from liability under Roy Plunkett's family automobile liability insurance policy number CAF 1047972 as issued by U.S.F. & G. The policy covered the period from January 23, 1968 to January 23, 1969, during which time the accidental death occurred. This issue in turn requires an interpretation of the policy's standard 'omnibus clause.' The standard 'omnibus clause' in the insurance policy issued to Roy Plunkett contains the following provision:

most significant and important assignment of error is that the lower court erred in failing to direct a verdict for appellant and further erred in overruling appellant's motion for a judgment notwithstanding the verdict. These errors are predicated basically upon the contention that C. B. Thompson, Jr. was not driving with the express permission of the named insured; that Thompson was not insured, within the meaning of the policy issued by the appellant, United States Fidelity & Guaranty Company, hereinafter designated as U.S.F. & G. or appellant; and that the protection afforded by said policy was not available to Thompson in any action for bodily injuries arising out of his operation of the vehicle of the named insured.

PERSONS INSURED

The following are insureds under Part I:

(a) With respect to the owned autmobile,

(1) the Named Insured and any resident of the same household, (2) any other person using such automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission. * * *

Appellant vigorously and repeatedly urges that the policy constitutes the contractual obligations of the parties and this Court should not nor should any court expatiate these mutual contractual duties as set out in the policy. However, in 1956 the Legislature of Mississippi enacted the Mississippi Motor Vehicle Safety Responsibility Act, which has application here, and which must be considered. Mississippi Code 1942 Annotated section 8285-21 (1956) provides in part as follows:

(a) A 'motor vehicle liability policy' as said term is used in this Act shall mean an owner's or an operator's policy of liability insurance * * *.

(b) Such owner's policy of liability insurance:

1. shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and

2. shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maitntenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows * * *. (Italics added.)

(d) Such motor vehicle liability policy shall state the name and address of the named insured, the coverage afforded by the policy, the premium charged therefor, the policy period and the limits of liability, and shall contain an agreement or be endorsed that insurance is provided thereunder in accordance with the coverage defined in this Act as respects bodily injury and death or property damage, or both, and is subject to all the provisions of this Act.

As can be seen by comparing the statutory provision relating to the coverage, there is a difference in exactly who is covered by the policy. The policy designates the persons insured as 'Any other person using such automobile with the permission of the named insured provided his acts of operation or (if he is not operating) his other actual use thereof is within the scope of such permission. * * *' (Italics added.) It should be noted that the Mississippi statute requires only the following: '(S)hall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured * * *.' (Italics added.)

It is the law in this state as it is in most jurisdictions that if there is any difference between an insurance policy as written by the company and the requirements by statute of the state, the requirements of the statute are incorporated into and become a part of the policy of the insurance company.

In Travelers Indemnity Company v. Watkins, 209 So.2d 630 (Miss.1968), rehearing denied May 13, 1968, this Court, speaking through Chief Justice Ethridge, stated:

The insurance business is affected with a public interest and is regarded generally as quasi-public in character. The authorities abundantly support this statement. There are numerous statutes enacted by the legislature regulating insurance and in many instances specifying precise clauses that are written into insurance policies by law. Policies insuring automobile owners against public liability is the subject of the Mississippi Motor...