Johnson v. New Amsterdam Casualty Co. ( 1951 )

65 S.E.2d 347 (1951) 234 N.C. 25

JOHNSON
v.
NEW AMSTERDAM CASUALTY CO.

No. 673.

Supreme Court of North Carolina.

June 7, 1951.

Welch Jordan, Greensboro, for plaintiff.

Smith, Sapp, Moore & Smith, Greensboro, for defendant.

DENNY, Justice.

The defendant has brought forward numerous exceptions and assignments of error to the findings of fact by the court below. However, there is evidence to support such findings and the exceptions thereto will not be upheld.

Moreover, this appeal turns on the interpretation placed upon the endorsement attached to and made a part of Woodall's policy of insurance.

It is apparent that Woodall applied for a license or permit from the State Corporation Commission of Virginia to operate a truck for hire in Virginia. Such Commission would have no authority to issue a license or permit to be used in interstate commerce. Even so, this would have no bearing on the right of the defendant to issue a policy of insurance on Woodall's truck, which would remain in full force and effect if and when the truck was operated outside the State of Virginia. Utilities Insurance Co. v. Potter, 188 Okla. 145, 105 P.2d 259, 154 A.L.R. 512, certiorari dismissed 312 U.S. 662, 61 S. Ct. 804, 85 L. Ed. 1109; Couk v. Ocean Accident & Guarantee Corp., 138 Ohio St. 110, 33 N.E.2d 9; Utilities Insurance Co. v. Smith, 10 Cir., 129 F.2d 798. There is nothing in the defendant's insurance contract which limits its liability to damages incurred only within that portion of the radius of fifty miles of Martinsville, Virginia, which lies within the State of Virginia.

If by attaching the endorsement set out herein to Woodall's policy of insurance, it was the purpose of the defendant to exclude the State of North Carolina, or that portion of it which lies within a radius of fifty miles of Martinsville, Virginia, as a part of the area in which the truck was customarily used, it did not do so by the language used.

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. McDowell Motor Co. v. New York Underwriters Insurance Co., 233 N.C. 251, 63 S.E.2d 538; Bailey v. Life Insurance Co., 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826; Stanback v. Winston Mut. Life Insurance Co., 220 N.C. 494, 17 S.E.2d 666; Roberts v. American Alliance Insurance Co., 212 N.C. 1, 192 S.E. 873, 113 A.L.R. 310; 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., 169 N.C. 35, 85 S.E. 37; Penn v. Standard Life & Accident Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 L.R. A.N.S., 593. "But if they are reasonably susceptible of two interpretations, the one imposing liability, the other excluding it, the former is to be adopted and the latter rejected, because the policies having been prepared by the insurers, or by persons skilled in insurance law and acting in the exclusive interest of the insurance company, it is but meet that such policies should be construed liberally in respect of the persons injured, and strictly against the insurance company." Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 50 S.E.2d 295, 297, and cases cited.

We hold that the language used in the endorsement simply means that the usual, or customary use of the truck, covered by the policy of insurance, was limited to an area within a radius of fifty miles of Martinsville, Virginia, exclusive of the area within cities and towns in North Carolina within that radius. And it is an indisputable fact that Martinsville, Virginia, is located not more than twelve or fifteen miles from the North Carolina State line.

And when the customary or regular use of an insured vehicle is confined during: the policy period to the territory within a fifty-mile radius of the limits of the city or town where the motor vehicle is principally garaged, it refers to the principal use, and the coverage is not affected by an occasional use beyond the specified radius. Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 6, Insurance, Sec. 3974.5, p. 687; Appleman's Insurance Law and Practice, Vol. 7, Sec. 4294, p. 61; Kindred v. Pacific Automobile Ins. Co., 10 Cal. 2d 463; 75 P.2d 69; Bandy v. East & West Insurance Co., 1942 Mo.App., 163 S.W.2d 350; Car & General Insurance Corp. v. Novodoczky, 101 Ind.App. 509, 200 N.E. 83. Cf. Crowell v. Maryland Motor Car Insurance Co., supra; Farm Bureau Mutual Automobile Insurance Co. v. Manson, 94 N.H. 389, 54 A.2d 580; and Birnbaum v. Jamestown Mutual Insurance Co., 298 N.Y. 305, 83 N.E.2d 128.

It is different, however, where it is agreed that the insured motor vehicle is to be operated entirely or exclusively within a specified radius or territory. In such cases the policy is ordinarily construed as not covering the vehicle on any trip outside or beyond the limited area. Lummus v. Firemen's Fund Insurance Co., 167 N.C. 654, 83 S.E. 688, L.R.A.1915D, 239; Person v. Tyson, 215 N.C. 127, 1 S.E.2d 367; Wallace v. Virginia Surety Co., 80 Ga.App. 50, 55 S.E.2d 259.

The appellant is relying on the last cited cases in support of its position, each of which was decided on a factual situation substantially different from that before us.

In the Lummus case, supra, in consideration of a reduced rate, a private garage warranty was attached to the policy, in which it was agreed that the automobile would be kept in a private garage, at the residence of the insured, in Columbus, Georgia, with the "Privilege, however, to operate car and to house in any other building or buildings for a period of not exceeding fifteen days at any one location at any one time, providing the car is enroute, visiting, or being cleaned or repaired." [167 N.C. 654, 83 S.E. 689.] The car was removed to Charlotte, North Carolina, not for the purpose of visiting, nor for having the car cleaned or repaired, but, on the contrary, its removal was permanent. It remained in Charlotte for five or six months, when it was placed in a machine shop in Columbia, South Carolina, in December, 1911, where it was destroyed by fire 10 January, 1912. The court held the permanent removal of the car from Columbus, Georgia, by reason of the provisions of the policy with respect to storage, rendered the contract of insurance void.

In Person v. Tyson, supra, the collision occurred outside the city limits of Rocky Mount, whereas the policy of insurance covering the defendant's taxicab expressly stated that the policy did not cover any loss resulting or arising from an accident while the taxi was being operated elsewhere than within the territorial limits of the City of Rocky Mount.

It is true that in the case of Wallace v. Virginia Surety Co., supra, the collision occurred within the 500-mile radius specified in the policy, while the truck was returning from a trip which extended 225 miles beyond the radius in which all operations were to be confined. However, we do not consider this authority as controlling or persuasive on the question before us, for the reason, as pointed out in the dissenting opinion thereto, the endorsement further provided that the insurer "shall not be liable for nor will it pay any loss or claim whatsoever that results from any accident or loss occurring while the automobile or automobiles described in the policy are being operated outside of the radius of 500 miles of the place where such automobile or automobiles described in the policy are principally garaged." 80 Ga. App. 50, 55 S.E.2d 261. In light of this provision, it is difficult to understand how any operation within the area was excluded from coverage.

In the instant case the collision occurred within the area in which it was agreed the truck was customarily used, and there was not sufficient evidence to warrant a finding of fact to the effect that it was not so used. Furthermore, if it should be conceded that all of North Carolina was excluded from the confined area, the agent of the defendant testified that the endorsement on Woodall's policy permitted occasional trips beyond such area.

The judgment of the court below is

Affirmed.

STACY, C. J., took no part in the consideration or decision of this case.