Lewis v. Dils Motor Company , 148 W. Va. 515 ( 1964 )

Calhoun, Judge:

This appeal involves a civil action instituted in the Circuit Court of Wood County by Murvle A. Lewis, plaintiff, against Dils Motor Company, a corporation, and one of its automobile salesmen, Carlos R. Hull, Jr. The plaintiff sued to recover damages for personal injuries sustained by him on April 16, 1960, when an automobile in which he was a guest passenger was involved in a collision with an automobile which was being operated on a public highway by Hull. The complaint alleges that, at the time and place of the collision, Hull was operating a Ford automobile belonging to Dils Motor Company while he was acting within the scope of his employment as an automobile salesman for his employer.

Before either defendant answered the complaint, American Hardware Mutual Insurance Company, a corporation, Dils Motor Company’s insurer, was permitted to intervene as a plaintiff in the action, pursuant to R. C. P. 24, for the purpose of determining whether the terms of the insurance policy were such that Hull was covered while operating the automobile at the time and place of the collision. That is the basic question presented for decision.

The insurer filed a complaint and also a copy of the insurance policy which was made an exhibit with and a part of its complaint. By the order which granted permission to intervene, further proceedings in the original action were stayed pending a judicial determination of the matters arising upon the intervener’s complaint.

The intervenor’s complaint alleges that the Ford automobile which Hull was operating at the time and place of the accident was owned by him, rather than by Dils Motor Company; and that he was not then and there operating the automobile in the course and scope of his employment. These allegations were denied by the plaintiff .in his answer and by Hull in his answer.

The plaintiff and the intervenor made separate motions for summary judgment pursuant to R. C. P. 56 in relation to matters .arising upon the intervenor’s complaint and the two answers. The motions were based on the in-tervenor’s complaint and exhibit filed therewith; the two answers; the deposition of defendant Carlos R. Hull, Jr. and an affidavit made by him; and two additional exhibits.

By an order dated June 21, 1963, the court denied the motion for summary judgment made by the plaintiff, sustained the motion for summary judgment made by the intervenor, and in doing so made the following findings of fact: (1) That Hull was an employee of Dils Motor Company but that he was not acting within the scope of his employment at the time of the accident; and (2) that the automobile which was being driven by Hull was owned by Dils Motor Company and was being -used by Hull with the owner’s permission at the time the accident occurred. In construing the terms of the insurance policy, the court held that Hull was not “an additional insured” and hence was not covered by the policy at the time of the accident. A written opinion .of the court was made a part of the record. From that final order, plaintiff Murvle A. Lewis and defendant Hull have appealed to this Court.

On February 20, 1960, defendant Hull executed a conditional sales contract and note which set forth a conditional sale from Dils Motor Company to Hull of the Ford automobile which was being operated by Hull at the time of the collision. The conditional sales contract and note were assigned to The Parkersburg National Bank. The contract required Hull to pay five monthly payments of $50.00 each and on the sixth month to pay the unpaid balance of the purchase price, amounting to $2,566.66. By the terms of the contract Hull was required to carry a policy of collision insurance on the automobile and he did. so. After the conditional sales contract was executed, Hull and Dils Motor Company executed an additional contract in writing as follows:

“It is hereby mutually agreed that I, as salesman for Dils Motor Company, upon accepting a neiw car as demonstrator, will cover same with physical damage insurance, and make regular monthly payments of Fifty ($50.00) Dollars per a signed conditional sales agreement.

“It is also agreed that at a desirable time on or before a six (6) month lapse of time from date of acceptance of said demonstrator, the demonstrator be returned to Dils Motor Company for their disposition. In the meantime said Dils Motor Company reserves the right of ownership of said demonstrator.”

The contract quoted above indicates clearly that the parties to the contract regarded the automobile merely as a “demonstrator” and that Dils Motor Company reserved “the right of ownership of said demonstrator.” Hull made the five $50.00 monthly payments to the bank. About October 1, 1960, when new model Fords came on the market, Dils Motor Company paid to the bank the final payment which represented the balance due and unpaid. At that time, the automobile was placed on Dils Motor Company’s lot for sale. In the meantime, no title had been obtained in the name of anybody, but dealer’s license tags owned by Dils Motor Company were used on the automobile. It was later sold by one of the other salesmen employed by Dils Motor Company to J. L. Amos, who obtained in his name the initial title for the automobile.

When the Ford demonstrator was sold, Hull received credit on the books of Dils Motor Company for the five $50.00 payments totaling $250.00; and, when he received a new demonstrator, payments on it were made from the sum of $250.00 thus held by Dils- Motor Company to Hull’s credit. He testified: “We handle it that way to keep from making those payments each time.”

The trial court determined' and held that the conditional sales contract land note represented a “sham sale”, and that the actual agreement between Hull and Dils Motor Company was that ownership of the Ford automobile was to remain with Dils Motor Company until it was sold to a purchaser in due course in the operation of the automobile sales business. We are of the opinion that the trial court was entirely correct in that holding. We are not called upon to decide what the rights of The Parkersburg National Bank were prior to the time it received full payment of the note which had been assigned to it.

A valid, unambiguous written contract may be modified, supplemented or superseded by a subsequent written or parol contract based on a valuable consideration. State ex rel. Coral Pools, Inc. v. Knapp, 147 W. Va. 704, pt. 2 syl., 131 S. E. 2d 81; Consolidation Coal Company v. Mineral Coal Company, 147 W. Va. 130, pt. 1 syl., 126 S. E. 2d 194; Wyckoff v. Painter, 145 W. Va. 310, 315, 115 S. E. 2d 80, 84; Bischoff v. Francesa, 133 W. Va. 474, pt. 4 syl., 56 S. E. 2d 865; Fox v. Starbuck, 117 W. Va. 736, pt. 1 syl., 188 S. E. 116; Summit Coal Co. v. Raleigh Smokeless Fuel Co., 99 W. Va. 11, pt. 2 syl., 128 S. E. 298; Corns-Thomas Engineering & Construction Co. v. McDowell County Court, 92 W. Va. 368, 381, 115 S. E. 462, 467. Even if we were to assume that Hull and Dils Motor Company regarded the conditional sales contract as a genuine contract, binding upon them, it is obvious that the effect of the new contract executed by them would have been to modify or supersede the prior contract insofar as it related to them.

Defendant Hull testified that no restriction or limitation was placed by Dils Motor Company on his right to use the Ford automobile in question. It appears without contradiction that he was authorized and permitted by his employer to use it for personal purposes. The trial court was fully justified in finding, therefore, that Hull was using the automobile with the permission of Dils Motor Company at the time and place of the collision. This Court cannot disturb a finding of fact made by a trial court unless it is clearly wrong. Dunning v. Barlow & Wisler, Inc., 148 W. Va. 206, pt. 1 syl., 133 S. E. 2d 784; General Electric Credit Corporation v. Fields, 148 W. Va. 176, pt. 2 syl., 133 S. E. 2d 780; J. & G. Construction Co. v. Freeport Coal Co., 147 W. Va. 563, 129 S. E. 2d 834; Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, pt. 6 syl., 128 S. E. 2d 626; Daugherty v. Ellis, 142 W. Va. 340, pt. 6 syl., 97 S. E. 2d 33; Martin v. Williams, 141 W. Va. 595, pt. 2 syl., 93 S. E. 2d 835; R. C. P. 52 (a).

The policy of insurance carried by Dils Motor Company with American Hardware Mutual Insurance Company contains the following provision which is involved in a determination of the matters arising on the intervenor’s complaint:

“With respect to the insurance under coverages A, B and D the unqualified word ‘insured’ includes the named insured and also includes (1) any partner, employee, director or stockholder thereof while acting within the scope of his duties as such and any person or organization having a financial interest in the business of the named insured covered by this policy, and (2) any person while using an automobile covered by this policy, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. This policy does not apply:

“(b) to any partner, employee, director, stockholder or additional insured with respect to any automobile owned by him, or by a member of his household other than the named insured; * * *.”

The trial court held that clause (2) quoted above, which refers to the use of an automobile with the “permission” of the named' insured, “means persons' other than an employee.” We are unable to agree with that conclusion.

Clause (2) of the insurance policy could have stated that it was not meant to refer to an employee; but it does not. Clause (1), quoted above, refers specifically to “any * * * employee, * * * while acting within the scope of his duties as such, * * Clause (1) is connected by the conjunctive “and” with clause (2) which applies coverage to “any person while using an automobile covered by this policy, * * * provided the actual use of the automobile is by the named insured or with his permission.” (Italics supplied.) We cannot find any basis for qualifying or limiting coverage as to “any person,” whether an employee or not an employee, actually using an automobile covered by the policy with the “permission” of the named insured. See State Farm Mutual Automobile Insurance Co. v. Cook, 186 Va. 658, 43 S. E. 2d 863, which is the subject of an annotation in 5 A.L.R. 2d 600.

The effect of the language quoted above is that an employee who is operating an automobile covered by the policy outside the scope of his duties as such employee is, nevertheless, covered by the provisions of the policy if the actual use of the automobile under such circumstances is with the permission of the named insured. We believe the language of the policy is clear and unambiguous in this respect; and that, therefore, such language is not subject to construction or interpretation but must be applied in accordance with the intent thereby clearly expressed. Spencer v. The Travelers Insurance Co., 148 W. Va. 111, pt. 4 syl., 133 S. E. 2d 735; Stone v. National Surety Corporation, 147 W. Va. 83, syl., 125 S. E. 2d 618; Christopher v. United States Life Insurance Co., 145 W. Va. 707, pt. 1 syl., 116 S. E. 2d 864. See also Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S. E. 2d 626, 631. “It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.” Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, pt. 3 syl., 128 S. E. 2d 626. We are not at liberty to speculate concerning what the parties meant to express or should have expressed. We must apply the language used by them according to the intent actually expressed.

The affidavit made by defendant Hull states not only that he was employed by Dils Motor Company as an automobile salesman “on an around-the-clock basis” and ■that he was authorized by his employer “to use said demonstrator vehicle for his own personal missions;” but also that he was “acting within the course and scope of his employment” at the time of the accident. In view of our holding that the insurance contract covered Hull while operating the automobile with the permission of his employer, both within and without the scope of his employment, it is unnecessary for us to decide and we do not decide whether Hull was acting within the scope of his employment at the time of the accident or whether a genuine issue of fact was presented in relation to that question.

For reasons stated, the judgment of the Circuit Court of Wood County is reversed and the case is remanded to that court for such further proceedings consistent with this opinion 'as may be proper.

Reversed and remanded