The opinion of the court was delivered by: MADDEN
This is an action commenced under the Declaratory Judgments Act, Title 28 U.S.C.A. § 2201, to determine the liability or rights of plaintiff, Farm Bureau Mutual Automobile Insurance, upon a policy of insurance issued February 26, 1951 to defendant, Kenneth A. Marr, upon a 1951 Willys Station Wagon owned personally by Marr.
Marr is the Agent in Charge of the Philadelphia, Pa., Customs Office of the United States Treasury Department and has been since 1949. On the night of October 24, 1951, and while the policy on the Willys was in force, Marr while driving a 1949 Ford, owned by the Government and assigned to his office, upon official Government business was involved in an accident which resulted in the death of one Philip H. Carfagno, represented here by the intervenor, and injury to others. Suit has been instituted both in the State Court and in this Court as a result of such accident. It is to determine the liability of the plaintiff insurance company for the death and injuries resulting from such accident under the terms of its policy that this action is brought.
The company argues that it is exempt from liability because the car Marr was driving at the time was one 'furnished for regular use to the named insured' and excepted from coverage by the terms of the policy. The defendant and intervenor argue that such phrase of exclusion does not apply to the particular facts and circumstances of this case.
The matter was tried to the Court without a jury and the sole question for determination is, 'Was the car Marr was driving at the time and place in question one 'furnished for regular use' to Marr?' If it was it comes within the exclusion terms and the company is not responsible. If it was not then the company is responsible upon the terms of the policy.
At the outset it might well be said that a reading of the cases discloses that no hard and fast rule has been nor in the opinion of this Court can be established for determining this question but that each case must stand or fall upon examination of the facts in the particular case before the Court The best that can be done is to observe the signposts that aided other Courts in determining this question.
And in Vern v. Merchants Mutual Casualty Co., Sup., 118 N.Y.S.2d 672, 674, the Supreme Court of New York, Appellate Term, First Department, held that the same provisions of a policy as here in question did not cover the insured who had hired an automobile for one month while away from home. There the Court said:
'The purpose of the clause is to cover casual or occasional use of other cars. Any other interpretation would subject the insurance company to greatly added risk without the payment of additional premiums. It is the availability of the car and the number of times it is used that should be the criterion.' (Emphasis supplied.)
In Farm Bureau Mutual Automobile Ins. Co. v. Boecher, 48 N.E.2d 895, 896, the Court of Appeals of Ohio held that the insured who was an automobile salesman and drove the used cars of his employer under a blanket authority of using the cars for demonstration purposes, or even on occasions taking them home, was not covered by the policy on his own individual car which had a clause similar to the one presently before the Court. And the Court, noting that it was the first time that he drove this particular car, said:
'We believe this would be true as to any automobile in the group of used cars, whether or not it was the first time that he was driving it, because, although he might not customarily or frequently drive any specific car in the group, each and all of these cars were furnished to him for his regular use, either in the business during the day or if he desired to drive home at night.'
In Rodenkirk for Use of Deitenbach v. State Farm Mutual Auto Ins. Co., 325 Ill.App. 421, 60 N.E.2d 269, 274, the Appellate Court of Illinois held that the clause did not cover the insured while driving another car which had been placed at the disposal of his daughter and himself by the daughter's boy friend when he entered the Army. There the Court said:
'It is evident that the purpose on the part of the company in extending the driver's regular insurance without the payment of any additional premiums would apply to the occasional driving of cars other than his own, but would be inapplicable to an automobile furnished to the insured for his regular use.'
In speaking of the words of exclusion 'furnished for regular use to the named insured' the District Court of Appeal of California in Pacific Automobile Ins. Co. v. Lewis, ...