Queen City Coach Co. v. Carolina Coach Co. , 237 N.C. 697 ( 1953 )

76 S.E.2d 47 (1953) 237 N.C. 697

QUEEN CITY COACH CO.
v.
CAROLINA COACH CO. et al.

No. 529.

Supreme Court of North Carolina.

May 20, 1953.

McDougle, Ervin, Horack & Snepp, by Frank Snepp, Charlotte, for appellant Virginia Surety Co.

Arch T. Allen and Joyner & Howison, Raleigh, for appellee Carolina Coach Co.

Jones & Small, by John H. Small, Charlotte, for appellees Liberty Mut. Ins. Co. and Lloyds of London.

Shearon Harris, Charlotte, for Queen City Coach Co.

ERVIN, Justice.

Carolina, Liberty and Lloyds move at the outset to dismiss the appeal on the ground that judgment was rendered in favor of Virginia at the trial and that in consequence Virginia has no right to appeal. The movers find color of support for their position in the recital of the judgment that Queen is not entitled to recover anything from Virginia. The judgment is to be interpreted, however, in the light of the pleadings, the issues, the findings of fact, and the conclusions of law. Berrier v. Board of Commissioners, 186 N.C. 564, 120 S.E. 328; Weeks v. McPhail, 129 N.C. 73, 39 S.E. 732; Taunton v. Dobbs, 240 Ala. 287, 199 So. 9; Aloe v. Lowe, 298 Ill. 404, 131 N.E. 612; Hays v. Madison County, 274 Ky. 116, 118 S.W.2d 197; Attorney General v. New York, N. H. & H. R. Co., 201 Mass. 370, 87 N.E. 621; Western Paving Co. v. Board of Com'rs of Lincoln County, 183 Okl. 281, 81 P.2d 252; 49 C.J.S., Judgments, §§ 438, 439. When this is done, it is manifest that the judgment adjudicates that Carolina, Liberty and Lloyds did not contract to make good to Queen the loss resulting from the collision between the Queen bus and the automobile driven by George O. Perkins; that in consequence Queen was not obligated to repay Virginia the moneys advanced to Queen by Virginia; and that the advancement of the moneys to Queen by Virginia was tantamount to a performance by Virginia of its obligation as Queen's insurer. This being true, the judgment put liability for the loss occasioned by the accident on Virginia alone, and made Virginia a "party aggrieved" within the purview of the statute prescribing who may appeal. G.S. § 1-271.

Virginia makes these assertions by its assignments of error:

1. That the trial judge erred in making certain findings of fact.

2. That the trial judge erred in adjudging that the policies and endorsements did not bind Liberty and Lloyds to indemnify Queen for the loss arising out of the collision of the Queen bus and the Perkins car.

3. That the trial judge erred in holding that the contract of May 29, 1947, did not obligate Carolina to furnish Queen liability insurance protection against the loss occasioned by the collision of the Queen bus and the Perkins car, and that in consequence Carolina did not breach an obligation to Queen in failing to provide Queen with such insurance protection.

The assignments of error based on exceptions to findings of fact are unavailing. The parties waived trial of the issues of fact by a jury in conformity with G.S. § 1-184. The findings of fact of the trial judge are supported by competent evidence, and for that reason are binding on the parties. Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Griggs v. Stoker Service Co., 229 N.C. 572, 50 S.E.2d 914, 15 A.L.R.2d 798; Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464.

We turn to the court room scene in the Merchant of Venice for the conclusive answer to the argument of Virginia that the policies and endorsements imposed on Liberty and Lloyds contractual duties to make good to Queen the loss arising out of the collision of the Queen bus and the Perkins car. It was not "so nominated in the bond."

When the policies of Liberty and Lloyds were originally issued, they insured Carolina against legal liability for loss caused by the operation of Carolina's motor vehicles. The endorsements of Liberty and Lloyds did not extend the coverage of their policies to Queen's motor vehicles. The endorsements merely made Queen an additional insured under the policies of Liberty and Lloyds, and granted to Queen as such additional insured liability insurance protection against loss arising out of the operation of Carolina's motor vehicles on Queen's franchise route.

Virginia lays hold on paragraph 11 and a portion of paragraph 12 of the contract of May 29, 1947, to sustain its contention that Carolina obligated itself by the contract to furnish Queen liability insurance protection against the loss occasioned by the collision of the Queen bus with the Perkins car, and that Carolina breached this contractual obligation to Queen if the policies and endorsements furnished by Carolina did not, in fact, require Liberty and Lloyds to indemnify Queen for this particular loss.

Virginia advances these arguments on this phase of the case: Carolina bound itself to carry liability insurance to protect Queen from liability arising "as a result of the operation" of Carolina's buses over Queen's franchise route pursuant to the contract. The Carolina bus was on a trip over Queen's franchise route for which Carolina was responsible under the contract at the time of its disablement. Since the Queen bus was going to the relief of the disabled Carolina bus at the time of the collision with the Perkins car, the resultant liability of Queen for the injuries to the occupants of the Perkins car arose "as a result of the operation" of Carolina's bus over Queen's franchise route pursuant to the contract. Hence, Carolina obligated itself by the contract to furnish Queen liability insurance protection against the loss occasioned by the collision of the Queen bus with the Perkins car.

The arguments of Virginia on this aspect of the controversy resemble "the playbill which is said to have announced the tragedy of Hamlet, the character of the Prince of Denmark being left out." They ignore the crucial stipulation of paragraph 12 of the contract of May 29, 1947, that the liability insurance to be carried by the lessor was to be on buses of lessor.

When all is said, the contract of May 29, 1947, imposed these obligations, and these obligations only, on Carolina and Queen in respect to insurance: (1) It obligated Carolina to insure both itself and Queen against legal liability for losses caused by the operation of Carolina's buses on Queen's franchise route; and (2) it obligated Queen to insure both itself and Carolina against legal liability for losses caused by the operation of Queen's buses on Carolina's franchise route. This being so, the trial judge rightly ruled that Carolina did not contract to provide Queen with liability insurance protection against the loss arising out of the collision of the Queen bus and the Perkins car.

Our interpretation of the contract of May 29, 1947, is identical with that which the parties put upon it in issuing and accepting the endorsements and certificates. Smith v. Thompson, 210 N.C. 672, 188 S.E. 395; Williston on Contracts (Rev.Ed.), section 623. Virginia emphasized the validity of the interpretation by inserting in the endorsement to its policy the third stipulation declaring in express terms "that coverage is not provided to the Carolina Coach Company while its equipment is operating under rights or franchises granted to or held by Queen City Bus Company."

For the reasons given, the judgment is affirmed.