Alabama Farm Bureau Mut. Cas. Ins. Co. v. Robinson
| Decision Date | 19 February 1959 |
| Docket Number | 8 Div. 853,8 Div. 854 |
| Citation | 269 Ala. 346,113 So.2d 140 |
| Parties | ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., Inc., v. Gilbert H. ROBINSON. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., Inc., v. Joseph B. HOLT. , |
| Court | Alabama Supreme Court |
McDonnell & Jones, Sheffield, for appellant.
Mitchell & Poellnitz and Bradshaw, Barnett & Haltom, Florence, for appellees.
These are two separate and distinct suits brought by two different plaintiffs (appellees) against the same defendant (appellant) on an automobile liability insurance policy. By agreement, both cases were tried together in the lower court and submitted here on one record.
The complaint in each case alleges, in substance, the following: That plaintiff recovered a judgment in the circuit court of Lauderdale County against one Chester Dallas Balch for damages suffered by plaintiff in a collision between an automobile in which plaintiff was riding and an automobile driven by Balch; that plaintiff has been unable to collect said judgment; that execution thereon has been returned by the sheriff 'no property found'; that the automobile driven by Balch at the time of the accident was owned by one Armand J. Cole; that the automobile was covered by a policy of liability insurance issued by the defendant insurance company to Cole; that said policy contained what is known as an 'omnibus clause', insuring not only Cole but also any person actually using the automobile with Cole's permission; that, while said policy was in force and effect, plaintiff was injured in the aforesaid collision; that Balch was driving the automobile with Cole's permission; that no appeal has been taken from the judgment against Balch and the time for appeal therefrom has expired; that the suit is brought against the defendant insurance company to recover the amount of said judgment, together with the costs assessed against Balch in said suit. The 'omnibus clause', upon which plaintiffs rely for recovery, is as follows:
The jury returned a verdict in favor of the plaintiff in each case and judgments on said verdicts were duly rendered. The defendant's motion for a new trial being overruled in each case, it brought these appeals.
The ultimate and decisive question presented is whether the evidence supports a finding that Balch's use of the automobile at the time and place of the accident was with Cole's permission.
In view of the trial court's denial of defendant's motions for new trials, our consideration of the evidence and its tendencies should be in the light most favorable to appellees. Accordingly, we quote at length the statement of the facts as contained in appellees' brief, viz.:
'The evidence tends to show that Balch and Cole met by prearrangement at McKee's Store in Rogersville, Alabama, in the early morning of March 5, 1952, before 8:00 A.M., for the purpose of going together to the Reynolds Metals plant in Colbert County, Alabama in Cole's automobile to hunt for jobs. The two men were about the same age and attended the same class in the Veterans school in Rogersville which met five days per week from 3:30 P.M. to 9:00 P.M. with twenty minutes for supper break. They had known each other for several years, were friends, ran around together prior to the date of the accident, were together a lot, and frequently had their evening meal in company with each other and with other students in the school. Cole, a resident of Lexington, Alabama, enrolled in the Veterans School on July 25, 1951, while Balch, who lived just outside Rogersville, enrolled on February 1, 1952. Both Lexington and Rogersville, as well as Anderson which is to be later mentioned, are small rural towns in the east end of Lauderdale County, all situated fairly close together.
'After meeting at McKee's Store, Balch left, telling Cole he was going to the bank to borrow some money, and soon returned saying that he had got it. Cole did not have much money, if any, at the time. Hubert McKee, part owner of McKee's Store who also attended the same Veterans class with Balch and Cole, was present in the store and upon learning that the two men planned to go to Sheffield gave them some money and they agreed to bring him back two or three pints of 'state' whiskey. Balch and Cole then departed, the hour being some few minutes after 8:00 A.M.
'The two men traveled from Rogersville down Lee Highway towards Florence to the Wilson Dam Road, cut across the dam and on to the Reynolds plant in Colbert County Cole drove the automobile on this part of the trip. There they sought and obtained an interview concerning their quest for employment. At some time after their arrival at the plant and while still there Balch and Cole agreed that Balch would spend the night with Cole in Cole's home in Lexington and that the two of them would return to the plant together the next morning.
'The tendencies of the evidence show that Balch and Cole left the Reynolds plant shortly before noon with Balch driving the Cole automobile. Piecing the testimony together concerning what the two men then did, (although there is sharp conflict) it can be inferred that they drove to the ABC store in Sheffield and there purchased the two or three pints of whiskey which they had agreed to get for their classmate, Hubert McKee, and also obtained some whiskey for themselves. In any event the two obtained some 'state' whiskey after their departure from the Reynolds plant and both drank heavily between the time and the time they returned to Rogersville late that afternoon, taking turns about driving. It was clear from Cole's testimony that he and his friend, Balch, had ample access to obtaining intoxicating beverages during the course of their path of travel from Reynolds to Florence although he denied that he or Balch bought or drank any whiskey or beer at all until they got back to Rogersville about suppertime.
'In some manner which Cole could only vaguely recall on the stand he and Balch killed about five hours from the time of their departure from the Reynolds plant in Colbert County until they left Florence around 5:00 P.M. on their way back to Rogersville. Cole did remember that the two of them were in Florence that afternoon but could not tell the court or jury what time they arrived in Florence, or what time they left. He was able to recall that they stopped at Griffin's car lot in Florence behind a poolroom, and just stood around and talked; he could not remember how long he stayed at the car lot, but thought that he then went to the poolroom where he just loafed around. He could not say whether Balch came up there or that they went there together. Cole could not remember eating lunch.
'The evidence is undisputed that he and Balch arrived back in Rogersville around the time for the Veteran's class supper breack which the evidence showed to be 6:00 P.M. In Cole's car they went up to the Veterans School where they saw Mr. James Oaks, their teacher, and Hubert McKee, Tom Denton, Buddy Carlock, and Frank Murrah, some of their classmates. There they delivered the whiskey which they had agreed to get for Hubert McKee in Sheffield. In McKee's judgment at this time Balch and Cole were about three fourths drunk. According to their teacher, Mr. Oaks, the two men talked with him at that time and asked if they could be off, and he told them they would get an unexcused absence for that day. The evidence shows without dispute that their absence from Veterans Class on March 5, 1952, the day of the accident, was unexcused.
'The undisputed evidence further shows that from the school grounds that Balch, Cole, Hubert McKee and Frank Murrah during the short supper breack went to McKee's home in Rogersville for the purpose of taking a drink. McKee testified that Frank Murrah drove the Cole automobile from the school to his (McKee's) house while he (McKee) drove Murrah's car there. Cole contended on the stand that it was he who drove the car at this time. In any event, it is undisputed that when they all got there that Balch and Cole (as well as the others) had at least one or two straight drinks of 'state' whiskey from the bottle without chasers, and that during the ten or fifteen minutes the two men were there they discussed before the others their previously formed plan for Balch to spend the night with Cole. Hubert McKee testified that aside from the whiskey which Balch and Cole brought to him that night that they (Balch and Cole) had some more whiskey with them, and that he could not recall whether the whiskey which they all drank at his house was his or theirs.
'The tendencies of the evidence show that Balch and Cole while at McKee's house that night between 6:00 P.M. and 6:20 P.M. were intoxicated; that the two men discussed among themselves and agreed that from McKee's home in Rogersville they would travel in Cole's automobile to the Tennessee State line for Balch to pay off a check and for them to get a few beers and then go on the Cole's home where the two of them would spend the night; that even during that day Balch and Cole had talked and discussed and agreed about going up to the State line.
'The undisputed evidence shows that the two men left McKee's house in Rogersville in Cole's automobile headed toward the Tennessee State line with the agreed purpose of going there. Their planned path of travel took them through the small town of Anderson where they stopped at Belue's Store to get some gas. It was their admitted purpose to go on to the State line after refueling. Cole drove up in front of Belue's Store by one of the...
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