250 N.C. 1 | N.C. | 1959
Upon waiver of jury 'trial as provided in G.S. 1-184, the court’s findings of fact have tire force and effect of a verdict by jury. Cauble v. Bell, 249 N.C. 722, and cases cited.
Was the evidence sufficient to support the court’s findings of fact? If so, are the findingis of fact sufficient to support the eouirt’s conclusion's of law and judgment?
Re: Policy No. AP 62156.
An endorsement attached to this policy provides: “In consideration of the premiums charged it is understood and agreed that the vans and trucks covered! hereunder are used exclusively within a radius of fifty (50) miles of the limits of the City or Town where such vans or trucks 'are principally garaged.”
The court found as a fact that the collision occurred 57.08 miles from the city limits of High Point, North Carolina, where, according to -the policy, the collision truck was to be “principally garaged.”
This policy 'afforded no protection to WARNER in respect of the collision track when operated more than fifty miles from the city limits of High Point, North Carolina. Wright v. Insurance Co., 244 N.C. 361, 368, 93 S.E. 2d 438, and oases cited. Indeed, the Warner defendants make no contention that this policy protects them in respect of claims arising out of the April 10, 1957, collision.
Whether plaintiff is entitled to a judgment of nonliability under
Section 19 of the North Carolina Truck Act of 1947, now codified as G.S. 62-121.23, provides: “No certificate or permit shall be issued to 'any motor carrier, or remain in force until such carrier shall have procured .and filed with the Commission such security for the protection of the public ¡ais the Commission shall by regulation determine and require.”
. As to this policy, the court, based on the italicized sentence, concluded as a matter of law that plaintiff was not entitled to a judgment of nonliability as to defendants Misenheimer, Jett and DeWitt. The judgment proper contains no provision relating to this policy except the (first) sentence wherein it was ¡adjudged “that the plaintiff is not entitled to the relief prayed for in the ¡complaint.” Thus, the court refused to adjudge plaintiff’s nonliability under this policy; and the judgment implies that both policies afford protection to defendants Misenheimer, Jett and DeWitt.
In Flythe v. Coach Co., 195 N.C. 777, 783, 143 S.E. 865, where no such endorsement was involved, this Court held that the insurer was not liable for claims 'arising out of ¡a collision that occurred when the ■insured bus was being operated on ¡a special trip (from Raleigh to Davidson College) when the policy provided that the bus was to be
Here, the North Carolina Utilities Commission had issued to WARNER a certificate oí public convenience and necessity whereby WARNER was 'authorized as an irregular route common carrier to transport household goods “between all points and places throughout the State of North Carolina.” Unquestionably, if the collision had occurred when the collision truck was engaged in the intrastate transportation of household goods a® authorized by WARNER’S certificate of public convenience and necessity, Policy No. AP 62156, endorsed as aforesaid, would have afforded protection to defendants Misenheimer, Jett and D'eWitt irrespective of the rights and liabilities of plaintiff and WARNER inter se.
Plowever, the court found as a fact that, when tire collision occurred, the collision track was engaged in the transportation oí household goods from High Point, North Carolina, to Miami, Florida, an interstate operation. WARNER’S authority to operate the collision truck for the transportation of household goods in interstate commerce was conferred solely by its I. C. C. franchise, not by (the certificate of public convenience and necessity issued to WARNER by the North Carolina Utilities Commission. The North Carolina Utilities Commission did not purport to authorize, nor did it have legal power to authorize, interstate track operations. As to such operations, the Interstate Commerce Commission had full 'and exclusive authority.
In Putts v. Commercial Standard Insurance Co., Tenth Circuit, 173 F. 2d 153, the coverage of the policy was limited to operations witbin fifty miles of Deming, New Mexico. The collision occurred more than fifty miles from Deming while the truck was en route to Dallas, Texas. The insured held permits from tire Corporation Commission to operate as a contract motor 'carrier of goods for 'hire. Endorsements extending coverage to protect the public while operating under such permits were required and issued. However, when the collision occurred the track was engaged in transporting the 'insured’s own merchandise for use in the insured’s own business. Since the track was not being operated under either permit 'at the time of the accident, it was held that insured’s liability to third parties was not within the coverage of the policy.
It is generally held that a policy endorsement, issued to comply with the requirement of a state agency such as the North Carolina Utilities Commission, will provide coverage to the public only in respect of operations authorized by the insured’s permit or certificate of public convenience and necessity. Foster v. Commercial Standard
The under tying idea is expressed by Circuit Judge Northcott in Simon v. American Casualty Co. of Reading, Pa., supra, as follows: “The .purpose of the provision of the Public Service Commission requiring the attachment, to any accident policy issued in the State of West Virginia, of (M. C. Form 13) was to assure the existence of coverage whenever a vehicle was being used in the business for which a permit roas required, irrespective of any violations by the insured, which otherwise would cause the coverage to be non-existent.” (Our italics)
In our opinion, the endorsement issued by plaintiff to comply with the requirements made by the North Carolina Utilities Commission in respect of operations under its certificate of convenience and necessity does not extend 'the policy coverage so as to provide protection to third persons in respect of operations which the North Carolina Utilities Commission neither authorized nor was empowered to authorize.
For the reasons .'Stated, we reach the conclusion that, with reference ■to Policy No. AP 62156, plaintiff was entitled to -a judgment of non-liability as to all defendants. Plaintiff’s assignment of error, based on the court’s failure to so adjudge, is sustained. Accordingly, the judgment should be modified so as to contain an express adjudication to this effect. It is so ordered.
Re: Policy No. AP 61135.
The Interstate Commerce Commission had authorized WARNER to operate as a common carrier by motor vehicle, over irregular routes, in the transportation of “HOUSEHOLD GOODS as defined in PRACTICES OF MOTOR COMMON CARRIERS OF HOUSEHOLD GOODS, 17 M. C. C. 467, Between High Point, N. C, and points and places within 10 miles thereof, on the one h-and, and on the other, points and places in Georgia, Florida, Tennessee, West Virginia, Ohio, New Jersey, New York, Pennsylvania, Maryland, and District of Columbia, traversing South Carolina, Virginia, Kentucky, and Delaware for operating convenience only.”
Attached to Policy No. AP 61135 is an endorsement whereby plaintiff certified that it had issued to WARNER “a policy or policies of Automobile Bodiily Injury Liability and Property Damage Liability Insurance which, by the attachment of endorsement, form number B.M.C. 90, approved by the Interstate Commerce Commission, has or have been amended to provide the coverage or security for the protection of the public required with respect to the operation, maintenance, or use of motor vehicles under certificate of public convenience and necessity or permit issued to the Insured by the Interstate Commerce Commission or otherwise in transportation subject to part II of the Interstate Commerce Act and the pertinent rules and regulations of the Interstate Commerce Commission, regardless of whether such motor vehicles are specifically described in the policy or policies or not. The liability of the Company extends to all losses, damages, injuries, or deaths whether occurring on the route or in the territory authorized to be served by the Insured or elsewhere.” (Our italics) A certificate of insurance, setting forth said endorsement, was filed by plaintiff with the Interstate Commerce Commission.
An I. C. C. franchise confers operating rights. What motor vehicles are used in exercising his franchise rights is solely a matter for the licensee. The obvious purpose of the endorsement is to provide protection of the public when the licensee is exercising his I. C. C. franchise rights irrespective of the particular vehicle the licensee may be using while so engaged.
Under the italicized provision of said endorsement, it is quite clear that this policy afforded protection to defendants Misenhcimer, Jett and DeWitt irrespective of the rights and liabilities of plaintiff and WARNER inter se.
The judgment reforms Policy No. AP 61135 by amending Item 5 to read “1950 Chevrolet, two-ton truck, motor number HEA 753118, serial number 14TWG4179, or the 1950 Chevrolet, two-ton truck, motor number 9TYI-1080, serial number 1016679, when used as a substitute for the described vehicle when the described vehicle is temporarily withdrawn from use in long-haul or interstate commerce operations, only one vehicle to be beyond a radius of 50 miles from
Based on evidence it considered clear, strong, cogent and convincing, the count found that the agreement of the panties with reference to coverage on the collision truck was as stated in said amendment but that a provision to that effect had been omitted from the policy by mutual mistake.
It is well settled: (1) To reform, i.e., to correct, a written instrument on the ground of mutual mistake of the parties, the evidence must be clear, 'strong and convincing. Johnson v. Johnson, 172 N.C. 530, 90 S.E. 516. (2) “Whether or not the evidence is clear, strong and convincing in a particular case is for the jury to determine.” Stansbury, North Carolina Evidence, § 213, and cases cited.
In addition to facts stated above, the court’s extensive findings of fact include many evidential findings a-s distinguished from ultimate findings. We limit our review to those factual findings which we regard sufficient .to support the right of the Warner defendants to a reformation of Policy No. AP 61135 on the ground of mutual mistake as provided in .the judgment.
The findings of fact, in part summarized/ and in part quoted, set out in the following ten paragraphs (our numbering), are not challenged by plaintiff’s exceptions.
1. The late Casper A. Warner, on account of ill health, had not been actively engaged in the operation of his -transfer business since about July, 1955. From July, 1955, the business was operated mainly by Winfred Alan Warner, his son, who was in charge of all of the outside affairs of the business, including the handling of liability insurance for the trucks, and Oallie R. Lambeth, his daughter, who was in charge of the office affairs of the business.
2. WARNER operated a total of six pieces (trucks) of revenue equipment. WARNER’S business consisted principally of the local transfer and hauling of household goods in and around High Point. From time to -time all six of these revenue trucks were usedi in such local hauling.
3. Only two of WARNER’S trucks were used in long-haul and interstate operations, viz.: (1) The truck, which had a 22-foot body, described in Policy No. AP 61135, which “was used most regularly in the interstate or long-haul operations.” (2) The collision truck, which had a 16-foot body, which “was only occasionally used as a substitute or replacement for the truck with the 22-foot -body.” WARNER’S I. C. C. permit number was painted on the side of each of these
4. When the collision truck was used in interstate or long-haul operations, the truck described in Policy No. AP 61135 “was removed from such long-haul or interstate operations and was not again used in long-haul or interstate operations until the other truck (the collision truck) bad returned to the warehouse.”
5. Under date of February 1, 1950, plaintiff, designated therein as “Company,” and Flythe Insurance Agency, designated therein as “Agent,” both of High Point, North Carolina, made and executed an Agency Agreement, which was .shill in force when this action was tried. It contained, inter alia, the following provisions:
“(1) Agent has full power .and authority to receive and accept proposals for insurance covering such classes or risks as the Company may, from time to time, authorize to be insured, . . .
“(2) The Company authorizes the Agent to countersign and deliver policies of insurance signed by the -authorized officials of the company, and to request or prepare customary endorsement's, changes, assignments, transfers and modifications of policies from time to time where loss has not occurred.”
6. Flyfihe Insurance Agency, owned by Lloyd W. Flythe, Sr., had been an established insurance agency for some thirty-five years. Lloyd W. F-lybhe, Jr., had been in the Agency since about 1953; and prior to July, 1956, he -became, and since then has been, the principal operator of the business. “Flythe, Jr. was both a writing agent and policy agent; he solicited and placed the insurance .and issued policies.”
7. “When Lloyd Flythe, Jr. caane with the Agency -about five years ago Warner’s Transfer’ and Storage Company was one of the clients that the Agency serviced. Lloyd Flythe, Jr. was acquainted with Cas-per A. Warner and his son Winfred Alan Warner and his daughter Mrs. Oallie Lambeth. The Flythe Agency handled all .of the liability insurance coverage and the cargo -liability insurance coverage upon the Warner trucks. He was familiar with the operations that Warner’s Transfer -and Storage Company was conducting and was acquainted with the equipment that they used in their operations.”
8. Each of the -two (renewal) policies involved herein bear facsimile signatures -of plaintiff’s president and treasurer. Policy No. AP 61135 was “Countersigned at High Point, N. C. this 7 day of July 1956. L. W. Flythe, Flythe Insurance Agency, Authorized Agent.” Policy No. AP 62156 was “Countersigned .at High Point, N. C., 10-17-56, this 8th day of November 1956. L. W. Flythe, Flythe Insurance Agency, Authorized Agent.”
10. “The duties of the chief underwriter of Textile Insurance Company consisted of, among other things, the determination of the classification of the risk .and the premium to be charged for the risk; the issuing of policies and endorsements 'and the review of the operations of the insured and determining the type of policy or policies and the endorsements which should he issued to cover such operation; and the review of reports 'and the loss experience of the1 insured and the issuance of renewal policies if the risk proved satisfactory. Fletcher, as chief underwriter, wals empowered to authorize the substitution of one vehicle for another and had power .and authority to issue an endorsement authorizing such substitution and had authority to issue an endorsement embodying the agreement between Textile Insurance Company and the insured for the substitution of another- vehicle for the vehicle described 'in the long-haul policy.”
The court also found ais facts': “Prior to the titos the renewal policy was issued, Flythe 'explained to Fletcher that, although the 1950 Chevrolet truck which was described in the long-haul policy was primarily used in long-haul and interstate commerce 'operations, for convenience the insured had another 1950 truck licensed for long-haul and interstate commerce operations and when the track primarily used in long-haul and interstate commerce operations was being used locally or when because of weight capacity or while out for repairs the described vehicle was not being used, the insured wanted to substitute a 1950 truck in lieu of the described track so -that he would have coverage for the substituted track. Fletcher .agreed to this arrangement 'and it was understood that only one truck at a time could •be used for long-haul operations and never at 'any time was there to be but one long-haul unit operated beyond the 50-mile radius.
Plaintiff's exception to these cruciall findings of fact is overruled. The testimony of Lloyd W. Flythe, Jr., fully supports these findings of fact; and there is much corroborative evidence to support his testimony. John F. Fletcher, a witness for plaintiff, testified that he had several conversations with Flythe relating to .the WARNER coverage •prior to the issuance of Policy No. AP 61135. He did not deny, but simply did not recall, that he had made the agreement to which Mr. Flythe testified 'explicitly and in detail.
The court also found as facts that on April 10, 1957, when the collision occurred, WARNER was using the collision truck to haul Sirrul’s household goods from High Point, N. C., to Miami, Florida, as a substitute or replacement for the truck described in Policy No. AP 61135 because that truck was in poor mechanical condition, in need of repairs, and was in the warehouse where WARNER'S trucks were kept when not in use. These findings of fact are fully supported by competent evidence. Hence, plaintiff’s exception thereto is overruled.
The court also found ias a fajct that . . Gary Wayne Misenheimer was a passenger in the 1950 model Chevrolet truck being operated by Winfred Alan Warner . . .” We find no evidence deemed sufficient to support this finding of fact. Plaintiff’s assignment of error, based on its exception to this finding of fact, is sustained. The judgment should be modified -by striking therefrom this finding of fact. It is so ordered.
Unquestionably, as plaintiff contends, Policy No. AP 61135 as written does not describe the collision track nor do any of its provisions extend coverage to the collision truck; and, in this jurisdiction, unless and until ia policy is reformed there can be no recovery on the ground that it does not express the real agreement 'between the parties. Floars v. Insurance Co., 144 N.C. 232, 56 S.E. 915; Graham v. Insurance Co., 176 N.C. 313, 97 S.E. 6; Burton v. Insurance Company, 198 N.C. 498, 152 S.E. 396; Annotation: 66 A.L.R. 763, 771.
The crass -action of the Warner defendants is not on the policy
“It is well settled that in equity a written instrument, 'including insurance policies, can be reformed by parol evidence, for mutual mistake, inadvertence, or the mistake of one superinduced by the fraud of the other or inequitable conduct of the 'other.” Williams v. Insurance Co., 209 N.C. 765, 769, 185 S.E. 21; 29 Am. Jur., Insurance § 241; 44 C.J.S., Insurance §§ 278, 279; 7 Appleman, Insurance Law and Practice, § 4256.
It is noted that while Lloyd W. Elythe, Jr., advised WARNER that plaintiff agreed that the collision truck was covered under the conditions alleged by the Warmer defendants, Flythe was authorized to do so by plaintiff’s then chief underwriter.
Our conclusion is that, except as noted above, the court’s findings of fact are supported by the evidence; and that the judgment is supported by the court’s findings of fact.
Each of plaintiff’s thirty-six assignments of error has been carefully considered. As indicated above, two of plaintiff’s assignments of error are sustained. In all other instances, plaintiff’s assignments of error are overruled.
As modified in accordance with this opinion, the judgment of the count below is affirmed.
Modified 'and affirmed.
