222 S.E.2d 437 | N.C. | 1976
SECURITY INSURANCE GROUP OF HARTFORD, a corporation
v.
Lucille Croom PARKER and North Carolina Farm Bureau Mutual Insurance Company.
Supreme Court of North Carolina.
*442 Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for defendant-appellant.
Hamrick, Bowen & Nanney by Fred D. Hamrick, Jr., and Louis W. Nanney, Jr., Rutherfordton, for plaintiff-appellee.
EXUM, Justice.
The Court of Appeals erred in affirming the judgment of the trial court.
Whether Mutual's "Combination" and "Family" policies are construed as separate policies or a single policy of insurance, plaintiff has made out a prima facie case of coverage under the "Family" insuring agreement which provides insurance against liability "arising out of the . . . use of . . . any non-owned automobile." Defendant Mutual in its brief and on oral argument concedes that the truck being operated by Lucille Parker was a "non-owned automobile" as that term is used in the insuring agreement. Seaford v. Insurance Co., 253 N.C. 719, 117 S.E.2d 733 (1961), supports this concession. Since, however, extended coverage for non-owned vehicles in the "Combination" insuring agreement is provided only if the insured "owns a private passenger automobile covered by this policy" (emphasis added), existence of such coverage depends upon whether the words "this policy" refer only to the "Combination" coverages or to both the "Combination" and "Family" coverages.
We need not decide this question. Assuming, arguendo, there is coverage under both insuring agreements, the exclusions from coverage, while not identical, are essentially the same in both. Extended coverage for a non-owned automobile is excluded in both the "Combination" and "Family" agreements if the "automobile" is being used at the time in question in a, or any, business or occupation of either Floyd or Lucille Parker unless the vehicle being so used is a "private passenger automobile" as that term is defined in the policies.
The question, therefore, is whether there is legal error in the trial court's conclusion that defendants failed to prove, the burden being upon them to do so, Kirk v. Insurance Co., 254 N.C. 651, 119 S.E.2d 645 (1961), the "business or occupation" exclusion from non-owned automobile coverage. In our opinion there is. The conclusion is based upon Findings 9 and 15 which, for reasons hereinafter stated, must be set aside. Both of these findings seem to be based upon a misapprehension of applicable law. Facts so found "will be set aside on the theory that the evidence should be considered in its true legal light." Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973), and cases cited. Finding 9, moreover, is not supported by any evidence and must be set aside on that ground alone.
The only evidence pertaining to Finding 9 came from the testimony of Lucille Parker. *443 She testified, quite clearly, that at the time of the accident she and her husband "were engaged in the business of farming . . in no business other than farming"; her "husband was not engaged in any other occupation"; and other than farming she was engaged in being a housewife. She testified that at other times her husband had done a number of other things including construction and welding and that in January, 1969, at the time of her deposition he was working in construction in Florida. The trial court's finding that he was so employed at the time of the accident is apparently based on a misunderstanding of Lucille Parker's testimony on cross-examination.
Finding 9 also indicates that the trial court ignored plaintiff's own evidence which was to the effect that Lucille Parker at the time of the accident was driving a truck heavily loaded with corn which she was delivering to the Yelton Milling Company at Rutherfordton. It seems obvious that one hauling a heavy load of corn does not do so for the pleasure of it. Such a venture must be, it seems to us, in connection with some business enterprise. Thus when plaintiff rested its case the only question remaining relative to the "business or occupation" exclusion, leaving aside for the moment the exception to that exclusion, was whether hauling corn was a, or any, business or occupation of either Floyd or Lucille Parker.
In Finding 9 the trial court seems to have assumed that the "business or occupation" exclusion is satisfied only if the business engaged in was the principal, the primary, or the only business of the insured. He seems to have found that since Lucille Parker was primarily a housewife and Floyd Parker primarily in the construction business neither were or could be engaged in the business of farming or growing or hauling corn within the meaning of the exclusion.
The "business or occupation" exclusion, however, does not refer necessarily to the principal or primary business or occupation of the insured. In Seaford v. Insurance Company, supra, the plaintiff, a textile worker, was at the time in question operating a tractor-trailer truck on a one-time trip for the benefit of his employer in the textile business. He sought to establish coverage under "non-owned automobile" provisions of a policy similar to those here considered. In affirming a judgment on the pleadings for defendant insurance company we held that because of the "business or occupation" exclusion there was no coverage. We said, 253 N.C. at 724, 117 S.E.2d at 736-737:
In Allstate Ins. Co. v. Hoffman, 21 Ill. App. 2d 314, 158 N.E.2d 428, 430, where the Court there had to pass on the identical question here presented, it is said: "It is not uncommon for an insured to have a business in addition to his regular and customary occupation which he may pursue primarily or even wholly for purposes other than pecuniary gain; but such collateral business would nonetheless constitute a business or an occupation while so pursued. Since the policy contains no restrictive provisions as to the business or profession of the insured, it would seem that coverage or non-coverage is to be determined by the terms and provisions of the policy and not by reference to the particular business or occupation of the insured described in the policy." Also to the same effect are Dickey v. Fire & Life Assur. Corp., 328 Pa. 541, 195 A. 875; Voelker v. Indemnity Co., D.C.N.D.Ill., 172 F. Supp. 306, affirmed 260 F.2d 275 (7th Cir.).
The conclusion is that the insurance company's position is sound and supported by authority, and even though the insured had other employment upon which he depended primarily for his livelihood, the tractor-trailer was being used in "business or occupation" while the plaintiff was on the trip in the employ of Paul Leo Bennett.
Suppose defendant's evidence would support a finding that Lucille Parker was primarily *444 a housewife and her husband worked primarily in construction and welding on the day of the accident. If then the evidence is believed that she or her husband or both also leased a farm upon which they raised corn and on the occasion in question she was hauling corn from this farm to the mill in a truck loaned her husband, the "business or occupation" exclusion is established unless the truck in which the corn was hauled is a "private passenger automobile" as that term is defined in the agreements.
This brings us to Finding 15. By this finding it appears the trial court thought the International truck might be a "private passenger automobile" and defendant, by failing to offer evidence that it was not, failed to prove the "business or occupation" exclusion. Assuming, arguendo, that defendant had the burden to prove the nonexistence of the exception to the exclusion, see 19 G. Couch, Cyclopedia of Insurance Law § 79:384 (2d ed. R. Anderson 1968) (also citing cases contra), we hold that under no circumstances and notwithstanding the use to which it might be put can this kind of truck capable of hauling heavy loads of corn be a "private passenger automobile" as that term is defined in these agreements. Seaford v. Insurance Co., supra; Marshall v. Washington National Insurance Co., 246 N.C. 447, 98 S.E.2d 345 (1957); Taft v. Maryland Casualty Co., 211 N.C. 507, 191 S.E. 10 (1937); King v. Woodward, 464 F.2d 625 (10th Cir. 1972); See Corcoran v. The State Automobile Insurance Assoc., 256 Minn. 259, 98 N.W.2d 50 (1959).
In Seaford the exclusion from non-owned automobile coverage applied when the vehicle was used in any occupation of the insured except when the vehicle being operated was "a private passenger automobile." The vehicle in question was a tractor-trailer unit. After deciding that such a vehicle was an "automobile" within the extended coverage provisions we nevertheless affirmed a judgment on the pleadings dismissing plaintiff's action upon the ground that the truck was being operated in a "business or occupation" of the insured. The Court must have assumed without discussion that a tractor-trailer type vehicle could not be a "private passenger automobile." In Marshall we held, as a matter of law, that a pick-up truck could not be a "private passenger automobile of the pleasure type" as that term was used in an accident insurance policy although the evidence was that the pick-up truck was the only vehicle owned by the insured at the time he took out the policy and that it was used essentially for personal and pleasurable purposes. We said, "The defendant had the right to prescribe the type of vehicle it desired and was willing to cover in this limited coverage insurance policy. The use to which the insured put the truck could not and cannot change the plain meaning of the language of the policy or extend its coverage." 246 N.C. at 448, 98 S.E.2d at 346. In Taft, we held that a Ford truck pulling a four-wheel, 20-foot trailer, although being used at the time for pleasure, could not, as a matter of law, be a "passenger automobile" as that language was used in the insurance policy sued on. Considering a policy with an exclusion identical to those here, the Tenth Circuit Court of Appeals, applying Oklahoma law, held, "a GMC pickup truck being used for the transportation of a load of strawberries is not a private passenger automobile." King v. Woodward, supra at 628.
At this trial there seems to have been no genuine issue of material fact nor any real challenge to the credibility of defendant Mutual's evidence. Regarding the credibility of the witness Lucille Parker, we note that she testified against her own interest. Defendant, however, prior to trial never moved under Rule 56 for summary judgment. Had this pre-trial motion been made and had defendant upon the hearing made the same showing which it made at trial, the motion would have been well taken. Kidd v. Early, N.C., 222 S.E.2d 392 (opinion filed March 2, 1976).
*445 Since, however, there is no evidence to support Finding 9 and since both Findings 9 and 15 seem to have been made by the trial court under a misapprehension of applicable law, these findings are set aside and the judgment vacated. The case is remanded to the Court of Appeals to be returned to the Superior Court for a new trial. Helms v. Rea, supra.
New trial.