Blue Ridge Insurance Company v. Haun

276 S.W.2d 711, 197 Tenn. 527, 1 McCanless 527, 1954 Tenn. LEXIS 517

• Court: Tennessee Supreme Court
• Decided: November 16, 1954
• Status: Published

Opinions

Mr. Justice Burnett

delivered the opinion of the Court.

A petition for certiorari lias heretofore been filed by the Insurance Company -which has been granted. The case has been ably briefed and argued before this Court and we now have the matter for determination.

The question is (as stated by the Court of Appeals): “Is a towed automobile a ‘trailer’ within the sense of a clause excluding liability while the insured automobile ‘ is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company’ ”?

The original bill was filed by the insurance company seeking a declaratory judgment. The defendants to the suit, respondents here, are the insured and others having a claim against him by reason of an accident growing out of a state of facts wherein the insured had a “hot rod” racing automobile attached to the insured car which he was towing from Harriman to Knoxville. This “hot rod” or “racer” was owned by the insured and another and was not covered by insurance. "While being towed behind the insured automobile to which it was attached by means of a tow bar the tow rod broke (thus completely disengaging it from the insured automobile), causing the “hot rod” to veer to its left and collide head-on with an approaching automobile. The result of this collision was the cause of the death of one person and seriously injuring others who were in the approaching automobile. No part of the insured automobile struck this other automobile or was involved in this collision. The “hot rod” had its own motive power and was not designated ordinarily to function as a trailer but its function was to be used as a souped up racing car.

The Chancellor held that this car which was being towed was not a “trailer” within the terms of the policy. The insurance company appealed to the Court of Appeals and that Court affirmed the Chancellor.

It is insisted here that this case is controlled by our case of Waddey v. Maryland Casualty Company, 1937, 171 Tenn. 112, 100 S. W. (2d) 984, 986, 100 A. L. R. 654. The Court of Appeals distinguished the instant case from the Waddey case, supra. In the Waddey case the liability policy in effect on the automobile provided that it did not cover the insured automobile while the latter was being used for propelling any trailer or any vehicle used as a trailer, and the insured permitted two small boys to attach to the car a homemade wagon constructed from the frame of a small buggy about 5 feet long, 4 feet wide, and approximately 2 feet above the ground, equipped with four old T-Model Ford wheels with no tires, having no bed or seat except planks extending from the front to the back axle, and an accident happened when the insured, on reaching the top of a hill, instead of stopping the car, continued to drive down grade, as a consequence of which the boy who was riding on the wagon lost control thereof and crashed into a telephone pole. This Court held that the insured automobile was being used to propel a trailer within the meaning of the policy and that during the period the wagon was attached as a trailer the automobile was not covered by the policy. This Court in the Waddey case adopted as the definition of a “trailer” the definition as given by Webster’s International Dictionary to wit:

“ ‘A vehicle or one in a succession of vehicles hauled, usually, by some other vehicle.’ ” The Waddey case likewise gives the definition of a vehicle which clearly fits the souped up car being towed in this case. The obvious question for our determination is whether or not under the facts of this case this souped up “hot rod” was a “trailer”.

In the Waddey case the insurance policy excluded from liability:

“ ‘(e) being used for towing or propelling any trailer or any vehicle used as a trailer (incidental assistance to a stranded automobile on the road permitted) unless privilege for such use is specified in the Statements and/or unless such trailer is listed in Statements: nor in any event unless proper premium for such privilege is in the Statements set forth.’ ”

Under the policy in the instant case the following provision is included excluding coverage:

“(c) under coverages a and b, while the automobile is used for the towing of any trailer owned or leased by the insured and not covered by like insurance in the company * * *.”

Of course there is the obvious difference in the two exclusion provisions of the two policies. In the Waddey policy the additional language “ ‘or any vehicle used as a trailer ’ ’ ’ was used which is not in the instant case. It was for this reason that the Court of Appeals distinguished the instant case from the Waddey ease, that is, because of the use of the last phrase above quoted from the exclusion clause in the Waddey case. The Court of Appeals reasons that in view of this fact and in view of the ordinary accepted idea of what a trailer is and of the definition of a trailer as taken from 60 S. J. S., Motor Vehicles, Sec. 8, p. 118, to wit:

“A trailer is a separate vehicle, which is not driven or propelled by its own power, but which is drawn by some independent power; a vehicle without motive power, designed to carry property or passengers wholly on its own structure, and to be drawn by a motor vehicle. ’ ’

Thus the Court-of Appeals reasons that there is an ambiguity “in the use of the word ‘trailer’, which was of the insurer’s own making, thus calling into play two well known rules of construction: (1) that all ambiguities will be resolved in favor of the insured, and (2) that all limitations of liability are to be construed strongly against the insurer.” Citing authorities. And thus for this reason that court held that there was no exclusion under the instant policy.

We have heard able arguments and read several times the many fine briefs and have, given the matter considerable independent investigation as well as thought. After doing so we feel that this case is controlled by the Waddey case, supra. In the Waddey case a “trailer” is there defined and this definition fully covers the facts of the instant case. Thus where we have the word “trailer” defined by judicial pronouncement of this Court, there being no later judicial or legislative definition of a “trailer”, it is the duty of this Court to follow that decision. The result is that the two lower courts must be reversed and a declaration made by this Court that under the facts of the instant case the policy of insurance did not cover the automobile while this “hot rod” was attached thereto.

We have examined and read many cases from other jurisdictions on the subject as well as a well written annotation appearing in 31 A. L. R. Second' Series, 298 through 315. As said there (all of the cases that could be found are there collected) the cases “are not readily reducible to a statement of general rules. ”

The lower courts are reversed for the reasons herein set forth.