McDowell Motor Co. v. New York Underwriters Insurance , 233 N.C. 251 ( 1951 )

63 S.E.2d 538 (1951) 233 N.C. 251

McDOWELL MOTOR CO., Inc.
v.
NEW YORK UNDERWRITERS INS. CO.

No. 18.

Supreme Court of North Carolina.

February 28, 1951.

McMullan & Aydlett, Elizabeth City, for plaintiff.

Wilson & Wilson, Elizabeth City, for defendant.

DENNY, Justice.

The question for determination is whether or not the delivery of the automobile by plaintiff's sales manager to the prospective purchaser, under the above circumstances, was a voluntary parting with the possession thereof within the meaning of the exclusion clause contained in the plaintiff's policy of insurance.

This controversy hinges on the proper interpretation of the exclusion clause with respect to what constitutes a voluntary parting of possession as contemplated by the contracting parties.

The appellant argues that the language used in the exclusion clause is not clear since the word "possession" has many different meanings in legal terminology, citing National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 212, 58 L. Ed. 504, where it is said: "both in common speech and in legal terminology, there is no word more ambiguous in its meaning than possession. It is interchangeably used to describe actual possession and constructive possession which often so shade into one another that it is difficult to say where one ends and the other begins. * * * Custody may be in the servant and possession in the master; or title and right of control may be in one and the property within the protection of the house of another". It is contended, therefore, that under our general rule when the meaning of language used in a policy of insurance is doubtful, it must be construed in favor of the insured and against the insurer. Williams v. Ornamental Stone Co., 232 N.C. 88, 59 S.E.2d 193; Manning v. Commerce Insurance Co., 227 N.C. 251, 41 S.E.2d 767; Roberts v. American Alliance Insurance Co., 212 N.C. 1, 192 S.E. 873, 113 A.L.R. 310; Mills v. Metropolitan Life Insurance Co., 210 N.C. 439, 187 S.E. 581; Jolley v. Jefferson Standard Life Insurance Co., 199 N.C. 269, 154 S.E. 400; Allgood v. Hartford Fire Insurance Co., 186 N.C. 415, 119 S.E. 561, 30 A.L.R. 652; Underwood v. State Life Insurance Co., 185 N.C. 538, 117 S.E. 790; Crowell v. Maryland Motor Car Insurance Co., 169 N.C. 35, 85 S.E. 37.

Likewise, where a policy of insurance is reasonably susceptible to two constructions, one favorable to the insured, the other to the insurer, the construction favorable to the insured will be adopted since the insurer chose the language contained in the policy. Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 50 S.E.2d 295; Standard Accident Insurance Co. v. Harrison-Wright Co., 207 N.C. 661, 178 S.E. 235; Underwood v. State Life Insurance Co., supra.

We recognize the soundness of these rules, but the rule is equally well settled that an insurance policy is only a contract and subject to the same rules of interpretation applicable to written contracts generally, and the intention of the parties as gathered from the language used in the policy is the polar star that must guide the courts in the interpretation of such instruments. Kirkley v. Merrimac Mut. Fire Insurance Co., 232 N.C. 292, 59 S.E.2d 629; Gould Morris Electric Co. v. Atlantic Fire Insurance Co., supra; Bailey v. Life Insurance Co., 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826; Stanback v. Winston Mutual Life Insurance Co., 220 N.C. 494, 17 S.E.2d 666; McCain v. Hartford Live Stock Insurance Co., 190 N.C. 549, 130 S.E. 186. In the case of Gould Morris Electric Co. v. Atlantic Fire Insurance Co., supra, Stacy, C. J., in speaking for the Court on this question, said: "The heart of a contract is the intention of the parties which, is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time." [229 N.C. 518, 50 S.E.2d 297.] Therefore, in the interpretation of language contained in an insurance policy, the court may take into consideration the character of the business of the insured and the usual hazards involved therein in ascertaining the intent of the parties.

Insurance contracts will be construed according to the meaning of the terms which the parties have used and unless such terms are ambiguous, they will be interpreted according to their usual, ordinary, and commonly accepted meaning. Bailey v. Life Insurance Co., supra; Stanback v. Winston Mutual Life Insurance Co., supra; Roberts v. American Alliance Insurance Co., supra; Gant v. Provident Life & Accident Insurance Co., 197 N.C. 122, 147 S.E. 740; Powers v. Travelers' Insurance Co., 186 N.C. 336, 119 S.E. 481; Crowell v. Maryland Motor Car Insurance Co., supra; Penn v. Standard Life & Accidental Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 L.R.A.,N.S., 593.

It is conceded that plaintiff's sales manager had the authority to deliver the possession of the automobile in question to the prospective customer for the purpose of testing it or showing it to his wife for her approval or disapproval. And while it appears to be a practice with the plaintiff and some other dealers in the Elizabeth City area to permit prospective purchasers to test drive cars unaccompanied by a salesman or other representative of the owner, there is no evidence to support the view that the defendant was apprised of such practice and intended or agreed to insure the plaintiff against loss growing out of such practice. It becomes necessary, therefore, for us to say whether, in our opinion, delivery of the car to the prospective purchaser, a total stranger, for a purpose of his own, was a voluntary parting with possession within the meaning of the exclusion clause contained in the policy.

As a matter of course, the insurer would not be relieved from liability where the possession of the car covered by the policy was obtained from one not authorized to make a delivery thereof or where the car was taken under circumstances not implying consent on the part of the owner. Botnick Motor Corporation v. Northern Insurance Co., 253 A.D. 786, 300 N.Y.S. 1220; Beene v. Southern Casualty Co., 168 La. 307, 121 So. 876; Bankers & Shippers Insurance Co. v. Ellis Green Motor Co., Tex.Civ.App. 1937, 102 S.W.2d 294; Pratt v. Hanover Fire Insurance Co., 50 R.I. 203, 146 A. 763.

And in our opinion the exclusion clause under consideration would not constitute a release of the insurer from liability for loss by theft where only the custodial possession of a car was surrendered for the purpose of having some service performed for the owner by the custodian, such as washing, greasing, storing, repairing, etc. Blashfield's Cyclopedia of Law and Practice, Vol. VI, sec. 3717; Bennett Chevrolet Co. v. Bankers & Shippers Insurance Co., 58 R.I. 16, 190 A. 863, 109 A.L.R. 1077; Gibson v. St. Paul Fire & Marine Insurance Co., 117 W.Va. 156, 184 S.E. 562; National Mut. Casualty Co. v. Cypret, 207 Ark. 11, 179 S.W.2d 161; Beene v. Southern Casualty Co., supra; Allen v. Bershire Mut. Fire Insurance Co., 105 Vt. 471, 168 A. 698, 89 A.L.R. 460.

On the other hand, we think the exclusion clause does relieve the insurer from liability for theft where the possession of the car was voluntarily surrendered to another with the right to exercise control thereof for a purpose of his own. Bennett Chevrolet Co. v. Bankers & Shippers Insurance Co., supra; Boyd v. Travelers Fire Insurance Co., 147 Neb. 237, 22 N.W.2d 700; Stuart Motor Co. v. General Exchange Insurance Corporation, Tex.Civ. App. 1931, 43 S.W.2d 647.

A contrary conclusion, however, was reached in passing upon a factual situation similar to that before us and involving the identical exclusion clause, in McConnell v. Fireman's Fund Insurance Co., 5 Cir., 178 F.2d 76, and in Tripp v. U. S. Fire Insurance Co., 141 Kan. 897, 44 P.2d 236.

Even so, in our opinion, the exclusion clause was made a part of the plaintiff's policy for the very purpose of relieving the insurer from liability for theft in those instances where the insured voluntarily parts with the possession of an automobile covered by the policy under such circumstances as those disclosed on this record.

We have carefully considered the facts and circumstances under which the plaintiff parted with the possession of its automobile, and the authorities cited herein, and in our opinion it voluntarily parted with the possession of the insured car within the meaning of the exclusion clause contained in its policy.

The judgment as of nonsuit entered below is

Affirmed.