Witherstine v. Emp'rs' Liab. Assur. Corp., Ltd.

• Decision Date: 06 March 1923
• Citation: 235 N.Y. 168,139 N.E. 229
• Parties: WITHERSTINE v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENG.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 168

139 N.E. 229

WITHERSTINE

v.EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENG.

Court of Appeals of New York.

March 6, 1923.

Action by Charles J. Witherstine against the Employers' Liability Assurance Corporation, Limited, of London, England. Judgment for plaintiff on a directed verdict was unanimously affirmed by the Appellate Division (200 App. Div. 854,191 N. Y. Supp. 959), and the defendant by permission appeals.

Judgments reversed, and complaint dismissed.

McLaughlin and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth department.

Charles V. Byrne, of Syracuse, for appellant.

Merwin W. Lay, of Syracuse, for respondent.

POUND, J.

This is an action to recover upon a policy of automobile liability insurance issued to Charles Dunn, which provides that, in case the assured becomes insolvent, a person injured by him may maintain an action thereon, subject to its terms. On the 27th of July, 1919, Dunn's car, occupied by himself, his wife, two small children, and a friend, Albert Ridell, collided with an automobile owned and operated by the plaintiff, Witherstine. Witherstine brought an action against Dunn and Ridell to recover damages for his personal injuries and the injury to his car, and obtained a verdict of $4,500 against both defendant. The appellant, insurance company, had notice of the commencement of the action and was requested to defend, but declined to do so on the ground that the damages were not covered by the terms of the policy. Judgment was entered, and execution returned unsatisfied.

This action was then commenced. Plaintiff introduced in evidence the judgment roll, execution referred to, and testimony that the judgment had not been paid. Proof was offered that the policy was issued to Dunn by the insurance company, that it was in effect at the time of the accident, that it was written to cover the car owned by Dunn, which concededly was the car involved in the accident, and the policy was put in evidence. On the day the accident occurred, Ridell was driving the car, and Dunn was directing him when, where, and how fast to drive the car. This was substantially the plaintiff's case, except that both Dunn and Ridell testified that, at the time the execution was issued, they had no property on which it could be levied. At the conclusion of the trial the court directed a verdict in favor of the plaintiff for the amount claimed. The defendant made a motion for a nonsuit and also for the direction of a verdict, and took an exception to the refusal of the court to grant either. The judgment of the trial court was unanimously affirmed by the Appellate Division.

The only question which the insurance company seeks to raise is as to the proper construction of a clause or rider attached to the body of the policy, which reads:

‘The Employers' Liability Assurance Corporation, Limited, of London, England.

‘Automobile Endorsement (Form 2345). (Private Cover Only, Owner Operating.)

‘Dated, July 1st, 1919.

‘In consideration of the reduced premium at which this policy is written, it is stated by the assured (which statement is accepted by the corporation as true) that the automobiles described therein are and will be used only for private purposes. Private purposes shall include personal pleasure and family use, excluding the regular and frequent use for business or professional calls and excluding commercial delivery. It is further agreed that this Policy shall apply only while the said automobiles are being operated by CHARLES DUNN (who is the owner and the named Assured), or while the automobiles are being operated by a person connected with a repair shop or garage in connection with repair work, testing, delivering or calling for said automobiles.’

Upon the trial, it was conceded that, at the time of the accident, the car was not being operated by a person connected with a repair shop or garage, in connection with repair work, testing, delivering, or calling for said automobile. The real question, therefore, is what is the proper meaning to be given to the words ‘operated by owner for private purposes only’ as used in the clause quoted. The contention of the appellant is that this clause is what is known as a ‘one-driver’ clause of the policy; that the policy is issued at a reduced rate by reason of the fact that the car is to be operated only by the owner. The contention of the respondent is that Dunn, the owner, was operating the car when he was exercising control over Ridell, the driver.

The word ‘operate,’ standing alone, doubtless has more than one meaning. A surgeon operates when he amputates a patient's leg; a railroad company operates its railroad. Escher v. Buffalo & Lake Erie Traction Co., 220 N. Y. 243, 115 N. E. 445. The Workmen's Compensation Law (Cons. Laws, c. 67) provides compensation for injuries sustained by employees of those who are engaged in the business of operating vehicles on the street. Matter of Costello v. Taylor, 217 N. Y. 179, 111 N. E. 755. Under the Labor Law (Cons. Laws, c. 31) the words ‘to operate a machine’ mean ‘to regulate and control its management or operation.’ Ingraham, J., in Gallenkamp v. Garvin Mach. Co., 91 App. Div. 141,86 N. Y. Supp. 378, reversed on his dissenting opinion, 179 N. Y. 588, 99 N. E. 718.

In connection with the use of motor vehicles, the word ‘operate’ seems to have acquired a definite meaning. The Highway Law (Cons. Laws, c. 25) § 281, provides:

‘The term ‘chauffeur’ shall mean any person operating or driving a motor vehicle, as an employee or for hire. The term ‘operator’ shall mean any person, other than a chauffeur, who operates a motor vehicle.'

Section 282, subdivision 2, provides:

‘No person shall operate or drive a motor...