Weston v. Great Central Ins. Co., 9484

• Decision Date: 06 September 1974
• Docket Number: No. 9484,9484
• Citation: 514 S.W.2d 17
• Parties: Cynthia WESTON, Plaintiff-Respondent, v. GREAT CENTRAL INSURANCE COMPANY, Defendant-Appellant, and Government Employees Insurance Company and State Farm Mutual Automobile Insurance Company et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 17

514 S.W.2d 17

Cynthia WESTON, Plaintiff-Respondent, v. GREAT CENTRAL INSURANCE COMPANY, Defendant-Appellant and Government Employees Insurance Company and State Farm Mutual Automobile Insurance Company et al., Defendants-Respondents.

No. 9484.

Missouri Court of Appeals, Springfield District.

Sept. 6, 1974.

E. L. Monroe, Monett, for plaintiff-respondent.

B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse, & Dalton, Springfield, for defendant-appellant.

Kenneth W. Haile, Johnson & Rice, Neosho, for defendant-respondent Government Employees Ins. Co.

Karl W. Blanchard, Blanchard, Van Fleet, Robertson & Dermott, Joplin, for defendant-respondent State Farm Mut. Auto. Ins. Co.

BILLINGS, Judge.

In this suit for a declaratory judgment the Circuit Court of Barry County entered judgment that Great Central Insurance Company (herein Great Central) afforded liability coverage to plaintiff Cynthia Weston, as to claims of third parties and that policies of Government Employees Insurance Company (herein GEICO) and State Farm Mutual Automobile Insurance Company (herein State Farm) did not provide coverage. Great Central appeals, contending its policy does not afford coverage and suggesting that the policies of CEICO and State Farm are applicable. We affirm.

On June 12, 1969, plaintiff Cynthia Weston was driving a Cadillac automobile which was owned by her son-in-law, Captain Legg, when it was involved in a collision with a motor vehicle operated by a Mrs. Wood. As a result of the collision Mrs. Wood and her husband brought suit against plaintiff for damages.

The Cadillac had just been repaired and serviced at 'Weston's Standard Service,' a service station at Monett, Missouri, operated by plaintiff's husband (William Weston) and son, and plaintiff was delivering the automobile to either the Weston home or the Legg residence at the time of the collision. The Cadillac was covered by a liability policy issued by GEICO. Great Central had a liability policy affording 'Garage Insurance Coverage' to the service station. State Farm's liability policy covered the Weston's personal automobile.

A few days before the collision Captain Legg, his wife and children, came to Missouri from Florida for the purpose of locating a residence near the Weston home. The captain had received overseas orders and wanted his family located near his wife's parents. The Weston home was some 18 miles from the service station and the Leggs found a suitable residence about three miles away from the Weston dwelling. Captain and Mrs. Legg were to return to Florida June 12th, by commercial flight from Springfield, to complete some unfinished business and their children were to remain with the maternal grandparents. It was tentatively planned for Mrs. Weston to drive her daughter and son-in-law to the airport in the latter's Cadillac and then leave the automobile at the Legg residence (to give the appearance that the home was inhabited) or at the Weston home.

During the course of the Legg family spending the night of June 11th with Mr. and Mrs. Weston, Captain Legg mentioned to his father-in-law that the Cadillac was running 'rough.' Mr. Weston suggested that he take the Cadillac to the service station and check it out and it was agreed that the car would also be serviced (lubrication, change of oil and oil filter) at the same time. It was understood that upon completion of repairs and service to the Cadillac by Mr. Weston that the automobile was to be parked at either the Legg residence or Weston home until the Legg's returned from Florida in a few days. Captain and Mrs. Legg were driven by Mrs. Weston to the airport at Springfield in the Weston family automobile.

William Weston had operated the service station for approximately two years and was assisted in its operation by his son. Mrs. Weston also helped out at the station on occasion, picking up and delivering cars for servicing, cleaning the restrooms, pumping gas and picking up needed automobile parts from suppliers. She was authorized to sign checks on the station account and assisted in the making of bank deposits for the station 'sometimes it's daily, usually two to three times a week.' Mrs. Weston had invested her own money in the station venture and thought of herself as a partner in its operation, as well as a 'flunky.'

In addition to selling gas and oil, the station offered 'complete car care.' Included were oil change, filters, lubrication, wheel alignment, brakes, exhaust systems and 'anything but going into major engine repairs.' As a part of its service to customers the station offered pick-up and delivery of automobiles. This latter accomodation was one of the six items featured in the station's ad in the telephone book yellow pages. Mrs. Weston often picked up or delivered cars for the station. When asked to deliver customer's cars her husband ordinarily would first have her drive the car between the gas pumps and back the vehicle to get the feel of the automobile.

On the morning of June 12th Mr. Weston drove the Cadillac to the station. He prepared a work order for the automobile and in checking the car discovered one of its wheels was 'badly out of balance' and proceeded to repair the same. The automobile was then serviced. The total bill for repairs and service (subsequently paid by Mrs. Legg) amounted to 'twenty some odd dollars.'

In the meantime Mrs. Weston had driven Captain and Mrs. Legg to the airport in the Weston automobile and en route back to her home stopped at the station. Her husband asked her to drive the Cadillac on home and park it because the Weston car needed servicing. 'I will service it and drive it home,' Mr. Weston advised his wife. Mrs. Weston agreed to this and, pursuant to her husband's instructions, proceeded to drive the Cadillac between the gas pumps and back the car so that she could get the feel of it. Shortly after Mrs. Weston drove the Cadillac from the station the collision occurred.

In this appeal Great Central argues that Mrs. Weston, while driving the Cadillac, was not engaged in the service station business, and thus no coverage was available to her under its garage liability policy. State Farm contends the lower court's judgment should be affirmed because Mrs. Weston was performing a service incident to the operation of the service station at the time of the accident and therefore, Great Central's policy provided coverage. For the same reason State Farm says its policy did not provide coverage. GEICO avers there was no coverage under its policy because Mrs. Weston, at the time, was engaged in the 'automobile business' as excluded in its policy.

Part I of Great Central's 'Garage Liability' policy stated: 'The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Coverage G. bodily injury . . . caused by an occurrence arising out of garage operations, including only the automobile hazard for which insurance is afforded as indicated in the declarations . . ..' 'Automobile Hazard 1' (Part VII) generally includes 'The ownership, maintenance or use . . . of any automobile for the purpose of garage operations . . ..' More specifically, 'Automobile Hazard 2' is defined as: 'The use in connection with garage operations of any automobile which is neither owned nor hired by the named insured, a partner therein or a member thereof, or a member of the same household as any such person. "(G)arage' means an automobile sales agency, repair shop, service station, storage garage or public parking place; 'garage operations' means the ownership, maintenance or use of the premises for the purpose of a garage and all operations necessary or incidental thereto. . . .' Under Part IV of the policy 'Persons Insured' include, 'with respect to the automobile hazard: (a) any person while using, with permission of the named insured, any automobile to which the insurance applies under the automobile hazard, provided his actual operation or, (if he is not operating) his other actual use thereof is within the scope of such permission . . ..'

State Farm's automobile liability policy, issued to William Weston, provided coverage for the use of non-owned automobiles by the named insured or his spouse (if residents of the same household). 'provided such use, operation or occupancy is with the permission of the owner or person in lawful possession of such automobile and is within the scope of such permission.' Under 'Exclusions--Section I,' the policy provided that coverage would not apply to a non-owned car 'while maintained or used by any person while such person is employed or otherwise engaged in an automobile business of the insured or of any other person or organization,' and under 'Definitions--Section I' the policy defined 'Automobile Business' as 'the business or occupation of selling, leasing, repairing, servicing, storing or parking of land motor vehicles or trailers.' (our emphasis).

The GEICO policy issued to Captain Legg provided coverage to the insured and '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' with respect to the owned automobile. Under paragraph 'g' of Exclusions, the policy withheld coverage 'to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business . . ..' The policy provided that "Automobile Business' means the business or occupation of selling, repairing, servicing, storing or parking automobiles . . .' (our emphasis)

In arriving at its conclusion that Great Central's policy afforded coverage and that the exclusions in the GEICO and State Farm policies were applicable the trial court made extensive findings of fact. Inter alia, the court found: that the station had a pickup and delivery service which was advertised; that plain...