Robinson v. Fidelity & Cas. Co. of N. Y., 3564
| Decision Date | 16 January 1950 |
| Docket Number | No. 3564,3564 |
| Parties | RUBY ROBINSON v. FIDELITY AND CASUALTY COMPANY OF NEW YORK. Record |
| Court | Virginia Supreme Court |
T. Helm Jones and William C. Worthington, for the plaintiff in error.
Williams, Cocke & Tunstall, for the defendant in error.
The question here is whether the driver of the automobile, through whose negligence the plaintiff suffered personal injuries, was operating it with the implied permission of the insured, its owner. Previous to the institution of this action the plaintiff had recovered a judgment against the driver, Will D. Beasley, for $1,200 damages but, being unable to collect it from him, she sued the defendant insurance company on a policy of automobile liability insurance covering the car and issued to its owner William R. Willis.
When the plaintiff rested, the trial court sustained a motion of the defendant to strike out her evidence and enter final judgment in its favor. The plaintiff's evidence must therefore be considered under a rigid application of the rule which would have been applicable if there had been a demurrer to the evidence. Jones v. Hanbury, 158 Va. 842, 164 S.E. 545.
The defendant insists that this rule is not applicable here because, by agreement, the case was heard by the trial judge as a jury. State Farm Mut. Ins. Co. v. Cook, 186 Va. 658, 43 S.E. (2d) 863, is relied upon in support of this position. In that case, however, the judge passed upon the merits and considered the evidence of both plaintiff and defendant. There was no motion to strike. Here the effect of such motion was to reserve to the defendant the right to introduce additional evidence if it should be denied. Since it was sustained it withdrew the case from consideration by the judge as a jury.
Considering the evidence, therefore, from the standpoint most favorable to the plaintiff, it may be said that the following facts are established:
The insured, Wills, the owner of the automobile, was in the Merchant Marine, and in the early part of February, 1948, he boarded a ship and went to sea. Prior to his departure, he had been keeping steady company with a girl who was generally known by the name of Jean Wills and who was registered under the name of 'Mrs. Jean Wills' at the DeLuxe Cabins where she lived. There was no evidence, however, that she was actually married to Wills, or that he lived with her as man and wife. She was working as a waitress at a restaurant known as the Blue Bird Inn on the Virginia Beach Boulevard. Beasley, who was driving the Wills car when the accident occurred, also was working there and frequently saw the insured and the girl Jean together in the restaurant. On the night before Wills shipped out, he told Jean that 'he was leaving the car with her, but he did not want to come back and find it wrecked. ' Beasley had become well acquainted with Wills and had many times ridden in the car with him and Jean before he went to sea. After Wills left, Beasley started going with Jean, who had taken possession of the car and was using it while Wills was gone. On the day of the accident Beasley had been driving the car for Jean. After they had stopped at a hotel on Main Street in the city of Norfolk, they found the car would not start. Thereupon Beasley phoned his brother, who ran a garage, and he towed the car to his garage on Brambleton Avenue. It was estimated that it would require about two hours to fix the car, so Beasley's brother allowed them to use his car to take Jean out to her home at the DeLuxe Cabins. Later Beasley returned to the garage, left his brother's car, and drove off in the insured's car which Jean was using. This was in accordance with Jean's instructions. A short time thereafter, while Beasley was driving the car over the Campostella bridge, the collision occurred which resulted in the plaintiff's injuries.
The defendant argues that the fact that Wills told Jean he was leaving the car with her is not direct evidence that he actually did so. But considered in connection with the fact that after he had gone she was in actual possession of the car, it is sufficient proof of the fact that he turned the car over to her for her own...
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