Whittington v. Ranger Ins. Co.

Decision Date19 December 1973
Docket NumberNo. 19745,19745
CourtSouth Carolina Supreme Court
PartiesMarcia C. WHITTINGTON, Executrix, Estate of Robert A. Whittington, Respondent, v. RANGER INSURANCE COMPANY, Appellant.

Joseph R. Young, Young, Clement & Rivers, Charleston, for appellant.

Rodney A. Peeples, Blatt, Fales, Peeples, Bedingfield & Loadholt, Barnwell, for respondent.

BUSSEY, Justice:

On April 16, 1969, plaintiff's testate, Robert A. Whittington, came to his death as the result of an airplane accident at Goat Island, Lake Marion, South Carolina the airplane being piloted by one Osborne L. Hysell. Subsequently, plaintiff obtained a judgment against the said Hysell for the conscious pain and suffering of the deceased in the amount of $12,268.11. In the instant action, plaintiff seeks to recover the sum of $10,000.00, from the defendant insurer, Ranger, asserting that the plane involved in the crash was afforded liability coverage under an aviation policy issued by said insurer to Hyfield Machinery Sales and Rental Company, Inc. of Varnville, South Carolina, of which corporation the said Hysell was president. Upon trial, the jury returned a verdict in favor of plaintiff and the insurer now appeals contending that the court erred in denying its motions for nonsuit, directed verdict and judgment n.o.v.

It is elementary that in the consideration of this appeal all of the evidence and the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the plaintiff. The evidence and the reasonable inferences therefrom are accordingly stated in the light of such principle. The policy sued upon insured a Champion Catabria aircraft, owned by Hyfield Machinery Sales and Rental Company, Inc., but the plane flown by Hysell at the time of the accident was a Cessna 172 aircraft owned by Hampton-Varnville Flying Club of which club Hysell was a member.

Under one clause of Ranger's policy, liability coverage was afforded with respect to the 'Temporary use of substitute aircraft'. Under the provisions of this clause, if the Champion aircraft was 'withdrawn from normal use because of its breakdown, servicing, loss or destruction' at the time of the accident and the Cessna was being 'temporarily used as a substitute' for the Champion, then the policy afforded coverage. The pivotal question in the case is whether or not the Champion was at the time 'withdrawn from normal use because of its breakdown' within the meaning and intent of the policy provision.

The Champion airplane was purchased by Hyfield new during December 1968, but, after only six flying hours, it developed that the engine was defective, the same being replaced by the manufacturer in late December. Shortly thereafter, the battery charger system became inoperative with the result that certain work was done on the alternator by a mechanic who discovered that the voltage regulator had moisture in it. The mechanic regarded the repairs as minor, complete and satisfactory. As far as the record shows, no further difficulty was had with the Champion plane until April 16, 1969, the date of the fatal accident. On that date, Hysell flew the Champion from Goat Island to the Hampton airport for the purpose of picking up the deceased Whittington to take the said Whittington back to Goat Island to go fishing. Hysell and Whittington boarded the Champion plane with their tackle with the purpose of taking off for Goat Island, but Hysell's efforts to crank the Champion were unsuccessful.

After a few minutes of unsuccessful effort, Hysell ceased his attempts to start the plane because he knew the battery wouldn't hold up too long. The Champion could be cranked by hand by one who knew how, but Hysell did not. Upon his being unable to start the Champion, Hysell went to a nearby hangar where he removed the Cessna 172 plane, one of two belonging to the Flying Club, in which he then flew to Goat Island with Whittington as a passenger. The fatal crash occurred on the return trip that evening. The evidence is undisputed that but for Hysell's inability to start the Champion, it, instead of the Cessna, would have been flown on the trip to Goat Island.

Hysell survived the crash but was hospitalized for a time. There is no evidence that the Champion was flown or used by anyone else while the Cessna was being used in its stead, and at least inferentially, the Champion was not flown again for quite some time after it failed to start on April 16th. There is no evidence of any repairs being made to the Champion, but the first person to start it after the 16th of April did not recall just how much difficulty, if any, he had in starting it. There is evidence from which it might be inferred that there was nothing mechanically wrong with the Champion but that Hysell was unable to start it either because it was too hot or because he thinned out his fuel mixture too much when he brought the plane in for a landing. Hysell, as a member of the Flying Club, had access to the planes belonging to the Club at any time he desired and was apparently one of the chief users of the Cessna 172, but was also a principal user of the Champion which he would have been flying but for his inability to start it.

It is elementary and requires no citation of authority that the provisions of an insurance policy are to be liberally construed in favor of the insured and strictly construed against the company which prepared the policy. No case has been cited or come to the attention of the Court involving insurance coverage...

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  • Episcopal Church in S.C. v. Church Ins. Co. of Vt. & the Church Ins. Co.
    • United States
    • U.S. District Court — District of South Carolina
    • September 22, 2014
    ...shows that the failure to give such notice has resulted in substantial prejudice to its rights”)); see Whittington v. Ranger Ins. Co., 261 S.C. 582, 201 S.E.2d 620, 623–24 (1973) (extending Factory Mutual's substantial prejudice requirement beyond mandatory automobile insurance to voluntary......
  • Episcopal Church in S.C. v. Church Ins. Co. of Vt.
    • United States
    • U.S. District Court — District of South Carolina
    • September 22, 2014
    ...shows that the failure to give such notice has resulted in substantial prejudice to its rights”)); see Whittington v. Ranger Ins. Co., 261 S.C. 582, 201 S.E.2d 620, 623–24 (1973) (extending Factory Mutual's substantial prejudice requirement beyond mandatory automobile insurance to voluntary......
  • Liberty Loan Corp. of Darlington, S.C. v. Mumford
    • United States
    • South Carolina Court of Appeals
    • January 23, 1984
    ...the trial and not timely preserved by a proper exception cannot be considered for the first time on appeal. Whittington v. Ranger Insurance Co., 261 S.C. 582, 201 S.E.2d 620 (1973); Murphy v. Hagan, 275 S.C. 334, 271 S.E.2d 311 (1980); Crocker v. Crocker, 314 S.E.2d 343 (S.C.App.1984); Todd......
  • Roberts v. Gonzalez
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    • U.S. District Court — Virgin Islands
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    ...except for slight variations on the Beech 18 model, were similar within the meaning of Clause IV. See Whittington v. Ranger Insurance Co., 261 S.C. 582, 201 S.E.2d 620, 623 (1973) (upholding application of an identical clause when a Cessna 172 aircraft was substituted for a Champion Catabri......
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