Welborn v. Wyatt
| Citation | 175 Va. 163 |
| Decision Date | 26 February 1940 |
| Docket Number | Record No. 2144. |
| Court | Supreme Court of Virginia |
| Parties | J. BINGHAM WELBORN AND TABOR C. SMITH v. CHARLES O. WYATT, ET AL., AND AMERICAN MOTORISTS INSURANCE COMPANY. |
1. INSURANCE — Policy or Contract — Construction — Exclusions of Risks. — Courts have no power to make contracts of insurance, and when it appears upon the face of the contract by clear and unambiguous language that exclusions of risks are incorporated therein, then it is the duty of the court to enforce the contract as written.
2. INDEMNITY INSURANCE — Construction of Policy — Semi-Trailer Not Part of Truck within Policy Coverage — Case at Bar. — In the instant case, a proceeding to recover under a liability insurance policy, defendant company claimed that it was not liable because the policy expressly exempted coverage while the insured automobile was used for the towing of a trailer not covered by like insurance. At the time of the accident, there was attached to the truck a semi-trailer, used to haul lumber and logs. Plaintiff contended that since the semitrailer was joined to the tractor or truck by an iron bar, it constituted a truck, and therefore was such a truck as the policy covered.
Held: That the contention of plaintiffs was untenable under the provisions of the Motor Vehicle Code, sections 2154(48) et seq. of the Code of 1936, since in almost every section a distinction is drawn between motor vehicles, trailers and semi-trailers.
3. INDEMNITY INSURANCE — Construction of Policy — Semi-Trailer Attached by Iron Bar Held "Towed" Vehicle — Case at Bar. — In the instant case, a proceeding to recover under a liability insurance policy, defendant company claimed that it was not liable because the policy expressly exempted coverage while the insured automobile was used for the towing of a trailer not covered by like insurance. At the time of the accident, there was attached to the truck a semi-trailer, used to haul lumber and logs. Plaintiffs contended that since the two vehicles were joined by an iron bar, the first vehicle was not towing the second, and that the exclusion clause of the policy applied only to instances where one vehicle was towing another in an emergency.
Held: That section 2154(159) of the Code of 1936, relating to towing vehicles, made plaintiffs' contention untenable.
Error to a judgment of the Circuit Court of Nansemond county. Hon. James L. McLemore, judge presiding.
The opinion states the case.
Paul L. Everett, James H. Corbitt and Thomas L. Woodward, for the plaintiffs in error.
Earl W. White, for the defendants in error.
This writ of error brings under review judgments pronounced against plaintiffs in error by the Circuit Court of Nansemond county. It appears from the record that Welborn and Smith sustained serious injuries as a result of a collision between an automobile, of which they were occupants, and a truck, owned by Wyatt and Hathaway and driven by Luther Roberson, their servant and employee. Separate actions were brought by Welborn and Smith against Wyatt, Hathaway and Roberson, to recover damages for the injuries inflicted upon them as a result of the negligent act of the defendants, and judgments were obtained against them in the sum of $20,000 in favor of Welborn, and in the sum of $1,500 in favor of Smith. Executions were issued on the two judgments and were returned "No effects". Thereupon, plaintiffs filed garnishment proceedings under the statute against the American Motorists Insurance Company, to recover an alleged indebtedness due the defendants by the company by reason of a certain insurance contract entered into between the defendants and the company. The case was heard by the court and judgments adverse to the plaintiff were rendered.
The undisputed evidence is, that on the 16th of April, 1936, Wyatt applied to Lowery D. Finley and Company, agents for the American Motorists Insurance Company, for an insurance policy to cover liability in the full sum of $10,000 while operating a Ford 1 1/2 ton truck, motor number 18-2045540. The only information given Finley and Company was that obtained from the registration card of defendants issued by the Motor Vehicle Commission of the Commonwealth and the further fact that defendants were engaged in the lumber business. No mention was made of the fact that a trailer or semi-trailer was to be used in connection with the operation of the truck, and the only premium collected was the sum of $67, which covered insurance only on the truck for a period of one year. The evidence also discloses that Wyatt knew that a trailer or semi-trailer required a separate license, and that a trailer or semi-trailer, when attached to a truck, required separate insurance coverage. At the time of the accident, there was attached to the truck a semi-trailer, used to haul lumber and logs. It was the attachment of this semi-trailer to the truck that formed the basis for the denial of liability upon the part of the insurance company.
It is admitted by counsel for the plaintiffs "that at times, for the purpose of taxation, one part of the vehicle may be called `tractor' and another part `semi-trailer'."
The contract of insurance is a standard form policy and contains this pertinent provision:
"This policy does not apply; under coverage (a) and (b) while the automobile is used for the towing of any trailer not covered by like insurance in the company or while any trailer covered by this policy is used with any automobile not covered by like insurance in the company."
In the contract it is further provided:
"Except where specifically stated to the contrary, the word `automobile' whenever used in this policy shall mean the motor vehicle, trailer or semi-trailer described herein, and the word `trailer' shall include `semi-trailer'."
It is thus seen that the sole question involved is the question of coverage, which must be determined by a construction of the contract of insurance.
This court has repeatedly held that courts have no power to make contracts of insurance, and when it appears upon the face of the contract by clear and unambiguous language that exclusions of risks are incorporated therein, then it is the duty of the court to enforce the contract as written.
In Darden North American Benefit Association, 170 Va. 479, 482, 197 S.E. 413, 415, Mr. Justice Spratley said:
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