Allstate Ins. Co. v. Hartford Acc. & Indem. Co.
| Decision Date | 27 September 1972 |
| Docket Number | No. 9207,9207 |
| Citation | 486 S.W.2d 38 |
| Parties | ALLSTATE INSURANCE COMPANY, Plaintiff-Respondent, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Manuel Drumm, Sikeston, for defendant-appellant.
Jackson, Thomasson, Dickerson & Gilbert, Paul V. Gilbert, Cape Girardeau, for plaintiff-respondent.
The purpose of this declaratory judgment action is to determine which of the two parties litigant, i.e., plaintiff Allstate Insurance Company or defendant Hartford Accident and Indemnity Company, is the primary insurer of Gordon Humphrey with respect to the claims and litigation resulting from a major three-vehicle accident on U.S. Highway 61 near New Madrid, Missouri, 'after dark' on the evening of Saturday, September 6, 1969. From the judgment and decree of the circuit court casting defendant Hartford in the role of primary insurer, it appeals.
One of the vehicles involved in the aforesaid crash was a 1966 Oldsmobile owned by Mrs. Myrtle Camp, a widow, and then being driven or operated by Humphrey, in which Mrs. Camp's daughter, Mrs. Molly Bea Girvin, 21 years 8 months of age, was riding. Humphrey, then 20 years 3 months of age, was an insured under an Allstate policy issued to his parents as the named insureds and the owners of three described automobiles, none of which was involved in the aforesaid crash. The Allstate policy contained the typical provision that 'the insurance with respect to . . . a non-owned automobile shall be excess insurance over any other collectible insurance.' At the time of accident, there also was in force and effect a Hartford policy issued to Mrs. Camp as the named insured and the owner of the 1966 Oldsmobile involved in the above-mentioned accident, which provided coverage under the so-called omnibus clause to 'the named insured and any resident of the same household' and also to 'any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.' (All emphasis herein is ours.)
The meritorious and determinative issue here is whether or not Humphrey was, as a second permittee, operating the Camp automobile with the implied permission of Mrs. Camp, the named insured in the Hartford policy, there being no contention that he was operating with her express permission. Since resolution of this issue requires a factual determination (Wells v. Hartford Acc. & Indem. Co., Mo. (banc), 459 S.W.2d 253, 258(4); St. Paul Insurance Co. v. Carlyle, Mo.App., 428 S.W.2d 753, 755(1)), we turn to the evidence, noting preliminarily that the case was tried and submitted in the circuit court on the depositions of Mrs. Camp, her daughter Molly, and Humphrey, all taken on July 21, 1970, and three Allstate exhibits, namely, the Allstate policy, the Hartford policy, and a '5 1/10th page report' (handwritten statement) taken by an Allstate representative on December 1, 1969, almost three months after the accident of September 6, 1969. Because of the importance of the facts in this category of cases, at the risk of painful tedium we undertake a detailed evidentiary review in which we endeavor, with numerous testimonial references and excerpts, to preserve the flavor as well as the essence of the record brought to us.
Molly had been a resident student at Southeast Missouri State College in Cape Girardeau for 'a year and a half' prior to the close of the 1969 summer term about August 1. Her marriage in 1969 had been of brief duration since she 'left (her) husband the latter part of July 1969--he moved out to Sikeston.' Sometime thereafter--'a couple of weeks' prior to September 6, 1969, so Molly thought, or 'about a week or so' opined her mother--Molly went to Mrs. Camp's home in Lilbourn to be with her and assist her before and after 'eardrum surgery in Memphis.' But, as recorded in Molly's statement, 'I didn't give up my apartment (in Cape Girardeau) as I only intended to stay with mother till the fall term started.' While with her mother during this and other periods, Molly had driven Mrs. Camp's 1966 Oldsmobile 'if she needed it . . . and it was available'; but 'she usually asked, made sure that nobody was going to use it . . ..' When Allstate's counsel inquired whether 'any restrictions (were) put on her (Molly's) use of the car or could she . . . use it just about as she pleased based upon her good judgment,' Mrs. Camp responded 'I wouldn't phrase it like that; I would say if she had to go somewhere and it was agreeable she used the car.' However, 'at the moment' of inquiry Mrs. Camp did not remember 'any expressed restrictions' on Molly's use of the automobile, although she added 'I might remember something later' and also observed 'I think every parent does at a certain time' restrict his or her children. Mrs. Camp regarded Molly as 'pretty reliable,' depended on her good judgment, and had no recollection of having told Molly not to permit 'a particular person or group of persons' to drive the automobile. When Molly was asked 'did your mother ever place any restrictions on you so far as the use of the car was concerned,' her reply was: In her signed statement of December 1, 1969, to Allstate's representative, Molly said:
Mrs. Camp knew that sometimes Molly had 'other young people' in the automobile with her and that on one occasion prior to September 6, 1969, Humphrey 'was in the car'; but, as we proceed to point out, on the transcript before us the mother may not reasonably be charged with either actual or constructive knowledge that Molly had permitted any other person to drive the automobile. In her '5 1/10th page report' taken by an Allstate representative on December 1, 1969, Molly first stated on page 2 that 'I can't remember that anyone else drove mothers (sic) car, until I let Gordon Humphrey drive it on Sept. 6, 1969 (the date of accident),' but near the close of the 'report' declared In her subsequent depositional testimony on July 21, 1970, Molly professed recollection of two occasions prior to September 6, 1969, when another had driven her mother's automobile, to wit, (1) on a shopping trip to Memphis 'a girl friend . . . drove back,' and (2) about one week prior to September 6, 1969, Humphrey had driven the automobile 'most of the time' as he, Molly and her friend, Sue Dowd, rode some forty-five minutes to an hour within the city limits of New Madrid, a neighboring town in which both Humphrey and Sue resided. As to whether or not she had informed her mother that 'a girl friend' had driven on the shopping trip to Memphis, Molly was 'not sure'--'generally I tell her the course of events when I am in her car.' And, to the direct inquiry whether her mother knew 'that you had Gordon Humphrey in the car with you or that he had driven the car before September 6, 1969,' Molly's answer was no more certain or positive, 'Well she had known on one occasion Gordon was in the car with me, whether she knew he drove it or not I can't remember exactly . . ..' At another point in her testimony she repeated 'I don't know if I told her Gordon was driving the car.' Mrs. Camp confirmed her knowledge of the fact that Humphrey had been in the automobile with Molly, but in response to inquiries as to whether or not she had known that Humphrey had driven the automobile prior to September 6, 1969, she stated, 'I just don't remember . . . I don't believe; I just really can't say . . . I don't remember the facts on that.'
The multiple purposes of the ill-fated trip to Cape Girardeau on September 6, 1969, were stated thusly by Molly:
Before Molly left about 1:30 or 2 P.M., her mother 'told her to be careful because the tires weren't too good.' In turn, Molly informed her mother that she intended to 'go by' the home of her friend, Sue Dowd, in New Madrid and 'perhaps get Sue' to accompany her to Cape Girardeau. Molly's account of what happened in New Madrid was: But, when Molly reached Sue's home, Gordon Humphrey and his older brother were there and the four young people went skiing on the Mississippi River at New Madrid for 'around two hours.' When they returned to Sue's home, Molly asked Sue 'if she would go with me' but ...
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