Utica Mutual Insurance Co. v. Travelers Insurance Co.
| Decision Date | 31 July 1964 |
| Docket Number | No. 9192.,9192. |
| Citation | 335 F.2d 573 |
| Parties | UTICA MUTUAL INSURANCE COMPANY, Southern Insurance Company, Charles C. Lincoln, Jr., Clarence L. Saunders, an infant, D. Burke Graybeal, Guardian ad Litem for William Larry Saunders, an infant, and Nationwide Insurance Company, Appellees, v. TRAVELERS INSURANCE COMPANY, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Alex. M. Harman, Jr., and Howard C. Gilmer, Jr., Lulaski, Va., for appellant.
Waldo G. Miles, Bristol, Va. (Ralph L. Lincoln, Marion, Va., and Jones, Woodward, Miles & Greiner, Bristol, Va., on brief), for appellee, Charles C. Lincoln, Jr.
Before HAYNSWORTH, BOREMAN and BELL, Circuit Judges.
This case comes here upon objections to the Trial Court's instructions to a jury, upon the basis of which the jury found that one Lincoln was driving an automobile with the permission of its owners when he was involved in a collision with another vehicle. Automobile liability insurance coverages were dependent upon the answer to the single question submitted to the jury.1 We think the objections to the charge were well founded and, since they were presented to the District Court at the proper time, we reverse the judgment and remand the case for a new trial.
Mr. and Mrs. Charles C. Lincoln, Jr. and Dr. and Mrs. George Killinger had been good friends for many years. Lincoln and Killinger knew each other as children when they grew up in Marion, Virginia, and Dr. Killinger first met his wife-to-be in the Lincoln's home while she was on a visit to Marion. The two couples were close friends and remained in touch with each other when the Killingers moved to Washington, D. C., and later to Tallahassee, Florida, while the Lincolns moved to Miami Beach, Florida.
Dr. Killinger was a professor at Florida State University, and he and Mrs. Killinger maintained a home in Marion, Virginia, which they occupied in the summer months. This, the Lincolns knew, so when they sold their house in Miami Beach in January 1962 and decided to move back to Marion, Virginia, they telephoned the Killingers and arranged to rent their Marion home, fully furnished, during the remainder of the winter and spring months.
In April 1962, Mrs. Killinger drove up to Marion from Tallahassee for a visit. She had some business to attend with a public accountant in Wytheville, Virginia, and she wanted to see her son, then a medical intern at Charlottesville, Virginia. She was invited by the Lincolns to be a guest in her own home during her visit to Marion and her side trips to Wytheville and Charlottesville. She accepted the invitation, and during that visit a conversation occurred between Mrs. Killinger and Lincoln, which is the basis of Lincoln's claim that he had express permission to use the Killinger's automobile later that summer under the extraordinary circumstances which will presently appear.
Dr. and Mrs. Killinger owned a relatively new 1962 Dodge station wagon, which Mrs. Killinger had driven to Marion from Tallahassee for her April visit. In Marion, she told Lincoln of the excellent gasoline mileage she had gotten on her trip from Tallahassee and bragged about her Dodge and expressed her pride in it. Lincoln, appropriately, owned and drove a Lincoln Continental, but he testified that he had been interested in a Dodge station wagon and had talked to Mrs. Killinger's brother-in-law, a Dodge dealer in Marion. He was skeptical of Mrs. Killinger's statements about the automobile's gasoline mileage, and he testified that he inquired of her about the push button transmission controls, to which Mrs. Killinger responded that she had grown accustomed to them and liked them very much. According to Lincoln, Mrs. Killinger told him during the course of that conversation: "Take the car and try it out any time, and I think you will agree with me that it is probably the nicest car you have ever driven." Mrs. Killinger also testified that she had discussed with Lincoln the gasoline mileage she got in her Dodge, and testified that she told him to "try it out and see for yourself."
Nevertheless, Lincoln did not undertake to drive the Dodge station wagon while Mrs. Killinger was staying with the Lincolns in the Killinger home in Marion during April 1962. She returned to Tallahassee, and later, at the end of May, she and Dr. Killinger drove back to Marion and spent the summer in their home there, the Lincolns having vacated it in late May.
The two couples saw each other on occasions during June and July 1962, and on August 11, 1962, the Lincolns gave a party for a male guest of theirs. They invited the Killingers and a Mrs. Boyd. The group had cocktails at the Lincoln home and about 9:00 o'clock that evening went out to dinner. After they had finished their dinner, sometime between 11:00 o'clock and midnight, they stopped by the Killinger home to show it to the Lincolns' guest, and then the entire group agreed that they would go to the home of Mrs. Boyd, some five miles east of Marion. The six were in Mrs. Boyd's automobile, which they had used to go to the park where they had dined, and it was decided that they would pick up the Killinger automobile which had been left at the Lincolns' home, so that the Lincolns and the Killingers would have a means of returning to Marion from Mrs. Boyd's residence without requiring her to make another round trip. For that purpose, they drove by the Lincolns' home, from whence Mrs. Boyd drove Mrs. Killinger, Mr. Lincoln and the Lincolns' guest on to her home, while Dr. Killinger and Mrs. Lincoln followed in Dr. and Mrs. Killinger's Dodge station wagon. At Mrs. Boyd's there was piano playing and singing and Mr. Lincoln testified that at approximately 1:00 o'clock in the morning he was ready to go home. He...
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Clouse v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Civ. A. No. 8309.
...could not receive, permission from one who lost authority with transfer of ownership. Following then the reasoning in Utica Mutual Ins. Co. v. Travelers Ins. Co.,15 335 F.2d "The jury should have been plainly and carefully instructed that the permission granted by Mrs. Killinger in April sh......