Farmer v. Fidelity & Casualty Company of New York

• Decision Date: 18 October 1957
• Docket Number: No. 7457.,7457.
• Citation: 249 F.2d 185
• Parties: Charlie Edward FARMER, Lucy Mae Hamlett, Evelyn Johnson, Grady Harris, Mary Jennings, Otis Hamlett, Ollie Pearl Brandon, an infant, Lena Mae Johnson, an infant, Robert Harris, an infant, Willie Jennings, an infant, and Lottie Pearl Hamlett, an infant, Appellants, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

249 F.2d 185 (1957)

Charlie Edward FARMER, Lucy Mae Hamlett, Evelyn Johnson, Grady Harris, Mary Jennings, Otis Hamlett, Ollie Pearl Brandon, an infant, Lena Mae Johnson, an infant, Robert Harris, an infant, Willie Jennings, an infant, and Lottie Pearl Hamlett, an infant, Appellants, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK, a corporation, Appellee.

No. 7457.

United States Court of Appeals Fourth Circuit.

Argued October 14, 1957.

Decided October 18, 1957.

Jerry H. Luck and Andrew C. Muse, Danville, Va. (Williams & Luck, Danville, Va., on the brief), for appellants.

Edwin B. Meade, Danville, Va. (Meade, Talbott & Tate, Danville, Va., on brief), for appellee.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.

SOBELOFF, Circuit Judge.

An interpretation of the omnibus clause of a public liability insurance policy is the object of a suit for declaratory judgment filed in the District Court for the Western District of Virginia by The Fidelity and Casualty Company of New York. Defendants are Moses Jeffreys, the automobile owner, who is named as the assured in the policy; his son, Walter, and his nephew, James Jeffreys. Joined with them as defendants are the plaintiffs in several actions for personal injuries previously instituted against the three Jeffreys.

Moses Jeffreys lives on a farm near Milton, North Carolina, with his wife and his eighteen-year-old son, Walter, who assists in the operation of the farm and attends school. The automobile in question is the sole property of Moses Jeffreys, and his name alone appears in the policy. From time to time, Walter was permitted by his father to use the automobile; but both father and son testified unequivocally that Walter was always required to ask permission before each use of the automobile, and that he was frequently admonished by his father never to lend it to anyone or to let anyone else drive it.

While the insurance was in force, on May 12, 1956, having requested and received his father's permission, Walter drove the automobile from the farm to Milton, North Carolina. There he met his cousin, James Jeffreys. Despite the strict prohibition which, according to the uncontradicted evidence, the father had imposed, Walter and his cousin James exchanged automobiles. James proceeded, for an undisclosed purpose, to Danville, Virginia, in his uncle's automobile, which he apparently preferred because it was newer than his. Whatever the explanation for this exchange, it had nothing to do with any purpose of Moses Jeffreys, who was unaware of the event until later, when it was reported to him that his automobile had been in a collision. An accident and resulting injuries to a number of persons occurred while the automobile was operated by the nephew, James, as he was returning from Danville, Virginia. Walter was not then in the car, and the mission in which James was engaged was not one for Walter. The suits which followed were against Moses, Walter, and James Jeffreys. There being diversity of citizenship, the Insurance Company brought this action in the District Court to obtain an adjudication that it was not liable under the omnibus clause of the policy to defend James in the damage suits or to pay any judgments that might be recovered against him.

The policy contains the following definition of "insured":

"(a) With respect to the insurance for bodily injury liability and for property damages liability the unqualified word `insured\' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either."

Finding the basic facts as above recited, the Judge held that James Jeffreys was not operating the automobile as the agent of either Moses or Walter; that Walter was not legally responsible for the use of the automobile at the time of the accident, and that James was not using it with the express or implied permission of Moses Jeffreys, the owner and insured, or of his spouse. The District Court then passed an order declaring that the Insurance Company was not required to defend the suits against James Jeffreys or to pay any judgments against him.

On appeal, the heaviest attack against the District Court's action is predicated on the alleged insufficiency of the evidence to support the finding that the father had so restricted the use of the automobile by the son as to preclude the latter from allowing his cousin James to drive it. We think the evidence amply supports the Judge's finding. True, the fact that the evidence was uncontradicted would not compel its acceptance by the District Judge; but as it was credited by him, there is no basis whatever for this Court to set aside his finding. We certainly would...