Whisnant v. Nationwide Mutual Insurance Company

141 S.E.2d 268 (1965)

264 N.C. 195

Arthur Harvey WHISNANT v. NATIONWIDE MUTUAL INSURANCE COMPANY. Myrtice WHISNANT v. NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 367.

Supreme Court of North Carolina.

April 7, 1965.

*270 W. Harold Mitchell, Valdese, for plaintiff appellees.

Patton, Ervin & Starnes, Morganton, for defendant appellant.

DENNY, Chief Justice.

The question posed for decision on this appeal is simply this: Is a single, personal use of an employer's motor vehicle by an employee, which results in an accident, sufficient cause to exclude the benefits in a Medical Payments provision in an automobile liability insurance policy which excludes a nonowned automobile "furnished for regular use"?

The policy of insurance issued by the defendant included Medical Payments provision which covered the male plaintiff and his relatives, and required the defendant to pay to each such person a maximum of $500.00 in the event of bodily injury "while occupying or through being struck by an automobile * * *."

The additional provision in the policy pertinent to this appeal is as follows:

"EXCLUSIONS 1. This policy does not apply under Coverage G (Medical Payments) to bodily injury: * * * (b) sustained by the Named Insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the Named Insured or any relative other than an automobile defined herein as an `owned automobile.'" (Emphasis added.)

The general rule with respect to coverage in a policy of insurance relating to the use of a nonowned automobile, is discussed in a comprehensive opinion in the case of Whaley v. Insurance Co., 259 N.C. 545, 131 S.E.2d 491, in which Bobbitt, J., speaking for the Court, said:

"In our view, coverage depends upon the availability of the Ford for use by Whaley and the frequency of its use by Whaley. Rodenkirk [for Use of Deitenbach] v. State Farm Mut. Automobile Ins. Co., [325 Ill.App. 421], 60 N.E.2d 269; Vern v. Merchants Mut. Casualty Co., [21 Misc.2d 21] 118 N.Y.S.2d 672. It was `furnished' to Whaley by Firestone in the sense it was placed and continued under Whaley's authority and control. It was available for use by Whaley over an extended period and was used by him `on numerous occasions.' The stipulated facts dispel any suggestion that Whaley's use of the Ford `for his own personal business and pleasure,' was casual, occasional or infrequent. The stipulated facts establish that Whaley regularly used the Ford `for his own personal business and pleasure' as well as `in the conduct of the company's business.' It is our opinion, and we so decide, that Firestone's Ford was `furnished for regular use to' Whaley within the meaning of the policy."

It was clearly pointed out in the Whaley case, and in the cases cited therein, that the result in that case would have been different if Whaley's use of the Firestone automobile for personal business and pleasure had been a casual, infrequent use of said automobile.

The motor vehicle involved in the instant cases, while furnished for the regular use of the male plaintiff, was to be used only in the course of his employment, and was never used otherwise except in this single instance. Therefore, we concur with the finding of the court below to the effect "that the use of the truck was for a personal mission; * * * that this was the only time that said truck had ever been used by the Insured on a personal mission and that such use was a casual infrequent use of *271 said truck; that the use of the truck on the occasion in question does not come within the meaning of `an automobile furnished for the regular use of either the Named Insured or any relative' and such use on this isolated occasion does not exclude coverage under Exclusions 1(b) of the policy."

In the case of Pacific Automobile Ins. Co. v. Lewis, 56 Cal. App. 2d 597, 132 P.2d 846, cited and quoted with approval in Whaley v. Insurance Co., supra, it is said: "It cannot be said, as a matter of law, that such a use on a particular occasion, which is a departure from the customary use for which the car is furnished, is a regular use within the meaning of these clauses of the policies. * * *"

In the case of Schoenknecht v. Prairie State Farmers Ins. Ass'n., 27 Ill.App.2d 83, 169 N.E.2d 148, likewise cited and quoted with approval in the Whaley case, the policy of insurance involved specifically insured the plaintiff's Buick. The accident occurred 2 May 1957, about 11:00 p. m., when plaintiff was driving his employer's Chevrolet. The employer furnished plaintiff the Chevrolet for use in the performance of the duties of his employment. When the accident occurred, plaintiff, in violation of his duty to return the Chevrolet to his employer's shop at the conclusion of the day's work, was using the Chevrolet for personal purposes. It was held the plaintiff's liability was covered by the "use of Other Automobiles" clause in his policy.

The identical question now before us was involved in the Schoenknecht case, in which the Court said: "Plaintiff was furnished this car for his sole use in connection with the business of his employer during his working hours. He had never used the car to take him anywhere except upon the business of his employer and during his working hours. The only time he had ever used it was during his working hours and in furtherance of his employer's interest except on the occasion in question. The use of this car at this time was under the authorities, an isolated, casual, unauthorized use of an automobile other than his own and comes within the insuring agreements of this policy designated `use of other automobiles.'" See Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 292 P.2d 711.

The judgment of the court below is

Affirmed.