Peerless Insurance v. Gould

166 A.2d 462, 103 N.H. 134, 1960 N.H. LEXIS 34
CourtSupreme Court of New Hampshire
DecidedDecember 27, 1960
DocketNo. 4871
StatusPublished
Cited by5 cases

This text of 166 A.2d 462 (Peerless Insurance v. Gould) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peerless Insurance v. Gould, 166 A.2d 462, 103 N.H. 134, 1960 N.H. LEXIS 34 (N.H. 1960).

Opinion

Duncan, J.

The findings of the Trial Court establish that at all material times the defendant Gould was engaged in several distinct enterprises. He operated Gould’s Sales & Service which consisted of a service station and repair shop, also used as a sales agency for used cars. In connection with this business he held a dealer’s license from the State of New Hampshire and was issued three sets of dealer’s registration plates. He was also engaged in a junk business in the course of which he bought damaged automobiles, using parts taken from them in the repair and service business, and selling what remained as scrap. He owned and conducted two farms which adjoined the service station. He owned and operated two tractors and three trailers with which he transported paper under contract with the Groveton Paper Company. He likewise owned and operated two Ford trucks which were used in highway maintenance work for the State. These vehicles were registered in his name individually. Finally, he was engaged in lumbering operations in the course of which he had a reported income of approximately $24,000 for 1956 and 1957, and in 1957 had trucked a thousand cords of pulp wood to the Brown Company in Berlin, a distance of twenty-six miles. Approximately six hundred cords were transported for him by independent truckers. Between April 1, 1957, when the truck involved in the accident was registered for commercial use in Gould’s name individually, and December 30, 1957, when the accident occurred, some three hundred six cords of pulp wood were transported to Berlin by means of the truck which was involved in the accident.

This truck was a 1951 10-wheel Chevrolet which Gould purchased in November 1956, intending to resell it, according to the findings. After purchase, a body was installed on the truck and when [137]*137negotiation with two prospective purchasers failed, it was kept in the used car lot and used occasionally to haul disabled vehicles to the lot and to haul away junk or rubbish.

In April 1957 following warning by the State Police that the truck should have commercial registration if used on the public highways, Gould registered it in his own name at a cost of $180. Thereafter it was used “a few times” to haul tires, used vehicles, and junk and on two occasions to carry a load of hay from the meadow to the barn. Between April 1 and December 30,1957 it was used a total of forty-two days to haul pulp wood to Berlin. Eighteen of these days fell after September 25, when the policy took effect.

The Court found that “at the time of the accident the truck was not ‘used principally in the . . . operations’” referred to by the policy. In response to plaintiff’s requests for findings the Court found “from April 1, 1957 to the time of the accident, December 30, 1957, the . . . truck was principally used in an enterprise not connected with or incidental to Gould’s Sales & Service which was a used car operation.” In accordance with the defendants’ requests, the Court also found that the truck was “held for sale at all times during the period and kept on the used car lot when not being put to some actual operating use” and that “the ownership, maintenance and retention of the accident truck for sale [from April 1 to December 30, 1957] and the transportation of tires, motor vehicles and junk remnants with the same . . . were uses in connection with the specified policy business operations.” The policy is to be construed in the light of these and other findings to which reference will be made.

It has been pointed out that a garage liability policy furnishes more types of coverage than most liability forms. “ [It] is one of the most complex, and perhaps least understood, liability forms in use today. Its complexity is largely attributable to the breadth of coverage, that is, it embraces a multiplicity of hazards which otherwise are written under separate policies.” Morrison v. Anchor Casualty Co., 53 Wash. 2d 707, 708-9.

The policy involved in this case was no exception. It insured (1) against the hazards of ownership, maintenance or use of the premises as a sales agency, repair shop and service station and (2) “all operations necessary or incidental thereto,” which appears to include product liability. 2 Richards on Insurance (5th ed.) s. 296. See Welborn v. Ill. Nat. Cas. Co., 347 Ill. App. 65. It insured [138]*138(3) against damages arising out of “the ownership, maintenance or use of any automobile in connection with the above defined operations.” It further insured (4) against damages arising out of “occasional use for other business purposes” of any automobile owned by the insured “and used principally in the above defined operations.” Other coverages afforded are not material here.

While the third coverage described above is broad in scope it does not apply in this case even though the truck was maintained and upon occasion used “in connection with” the insured operations, because the damages caused by the accident in question did not “arise out of” ownership, maintenance or use in connection with the insured business or any operation necessary or incidental thereto. Spiegel v. Felton (Supr. Ct.) 134 N. Y. S. 2d 242. See also, Olson v. Standard Acc. Ins. Co., 211 F. 2d 661 (8th Cir. 1954). Hence if coverage is afforded by the policy it must be by virtue of the provisions numbered (4) above.

The findings of the Trial Court, which were warranted by the evidence, preclude coverage under these provisions of the policy, since it was found that the truck from the time of its registration to the date of the accident was “used principally” in an enterprise not connected with or incidental to Gould’s Sales & Service, and that at the time of the accident it was not “used principally” in the operations described by the policy.

The defendant Gould asserts that these findngs are unwarranted because, as the Court also found, during the period of two hundred seventy-four days from April 1 to December 30, the truck was used to haul pulp for only forty-two days, and during the period of ninety-six days while the policy was in effect before the accident, the truck was so used for only eighteen days; and for the remainder of the time it was “used” as a part of the insured’s used car stock in trade, by being parked on the used car lot. Hence it is argued, that as a matter of law “principal use” was in connection with the “described operations,” and the use to haul pulp was by comparison merely an “occasional use for other business purposes” within the meaning of the policy.

We are unable to accept this contention. It is settled law in this jurisdiction that the interpretation of a policy of insurance is controlled by what the language used would mean to a reasonable man in the position of the policy holder. Merchants &c. Cas. Co. v. Capobianco, 100 N. H. 223; Eastern Transp. Co. v. Liberty Mut. Cas. Co., 101 N. H. 407, 410. From the provision that “use for [139]*139other business purposes” would be insured provided the vehicle had been “used principally in the above defined operations,” the ordinary policy holder would reasonably understand that what was meant by “use” in both instances was “use” as a vehicle. Certainly use of the vehicle as stock in trade for some “other business” would not reasonably be thought intended as an insured “use.” Similarly “principal use” in the “defined operations” would not be taken to mean use as merchandise on display for sale, while standing idle, and “unused” as a vehicle.

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Cite This Page — Counsel Stack

Bluebook (online)
166 A.2d 462, 103 N.H. 134, 1960 N.H. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peerless-insurance-v-gould-nh-1960.