American Emp. Ins. Co. v. Johns
| Decision Date | 14 September 1970 |
| Docket Number | No. 45439,No. 3,45439,3 |
| Citation | 178 S.E.2d 207,122 Ga.App. 577 |
| Parties | AMERICAN EMPLOYERS INSURANCE COMPANY v. James L. JOHNS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the servant is given wide authority in the maintenance and use of the master's automobiles which are placed in his custody and possession and where no specific direction is given that he not use an automobile in a certain manner or at a certain time, his use of the same, although no express permission is granted, will be presumed to be with implied permission.
2. In ruling on whether or not opening statements of counsel are authorized by the facts of the case the trial judge is vested with a broad discretion, and his ruling thereon will not be disturbed unless it appears that his discretion was manifestly abused.
3. Since the jury would be entitled to consider all the facts and circumstances, it was not error, on cross-examination, to ask the master if he would have objected if the servant had wanted to run an errand and use the automobile while awaiting the direction of the master.
4. A charge that the implied consent which might arise as a matter of law from the facts and circumstances surrounding the use of the automobile by the driver would be as effective as express consent was not erroneous under the evidence.
This action for declaratory judgment arose as follows: Mrs. Walter H. Stewart owned an automobile, and same was customarily driven by Zonnie L. Adkins, who was the employee of Mrs. Stewart and her husband, Walter H. Stewart.
This automobile was insured against liability by American Employers Insuance Company.
At the time in question, Adkins, the employee, was driving the automobile, while neither of his employers was present therein. A collision occurred and James L. Johns was injured. Johns was carrying uninsured motorists liability insurance. It then became important to determine whether Adkins was using the vehicle with permission of the 'named insured' which would have meant that he was insured by American Employers Insurance Company, but if not, then Johns' uninsured motorists liability insurer, to wit, American Mutual Fire Insurance Company, would have been the insurer.
Johns filed suit against Adkins. American Employers Insurance Company filed defensive pleadings for the defendant, but reserved its rights under the policy, and promptly thereafter filed this suit for declaratory judgment in order to determine the rights and obligations of the parties, and specifically, whether it was obliged to defend the lawsuit against Adkins. Johns alone filed an answer to the suit for declaratory judgment, but shortly thereafter American Mutual Fire Insurance Co. intervened so as to protect its rights, as the uninsured motorists insurer of Johns, and to have it determined what obligation it had, if any, in the premises.
The court stated in its final order that 'at a pre-trial conference counsel for all parties agreed that there was no factual issue of express consent but only the factual issue of 'implied consent' * * *' and 'the following should be submitted to a jury * * * Did Zonnie Adkins on September 28, 1968, under all the facts and circumstances disclosed by the evidence, have implied permission to operate the 1968 Cadillac owned by the Stewarts?' On the trial of this issue the jury returned an affirmative answer, and, as a result thereof, judgment was entered, based on the verdict, finding defendant Adkins had the implied consent of Mr. and Mrs. Stewart to operate the insured Stewart automobile at the time of the collision, and declaring that coverage was afforded Adkins under the circumstances.
The plaintiff, American Employers Insurance Company, filed a motion for judgment notwithstanding the verdict, based on its motion for directed verdict made at the close of the evidence; and, in the alternative, a motion for new trial based on alleged errors in the proceedings before the jury. Error is enumerated on the denial of the motions for directed verdict, judgment notwithstanding the verdict, new trial, for mistrial when counsel for appellee, Johns, made certain alleged prejudicial remarks in his opening statement to the jury, and on the admission in evidence of certain illegal testimony and certain erroneous charges to the jury.
Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for appellant.
Fendig, Dickey, Fendig & Whelchel, J. Thomas Whelchel, Alaimo & Taylor, Anthony A. Alaimo, Brunswick, for appellees.
1. The first question we have for decision is whether or not the evidence was sufficient to authorize the affirmative answer by the jury that the defendant Adkins had the implied consent of the defendants, Mr. and Mrs. Walter H. Stewart, to operate the 1968 Cadillac at the time of the collision. The evidence is clear that Adkins was employed by the Stewarts to care for Mr. Stewart, who was an invalid and unable to drive an automobile. Thus Adkins had the custody and possession of this vehicle to carry Mr. Stewart wherever he wanted to go, as a passenger. The transcript shows that Adkins, on other occasions, had been allowed to use another car of the Stewarts for his personal use. In fact, a smaller car was used by him in driving to and from work. There was no direct testimony that he could not use the Cadillac (the insured car) for his own personal use, although the smaller car was used by him to drive home with and return to work every day of his employment. Of course, if Adkins had been specifically forbidden to use the Cadillac for his own personal use, there could be no implied consent. See Hodges v Ocean Accident & Guarantee Corp., 66 Ga.App. 431, 435, 18 S.E.2d 28; Ditmyer v. American Liberty Ins. Co., 117 Ga.App. 512, 160 S.E.2d 844. While he was told which car he could use when going alone on an errand for the Stewarts, and in driving to and from work, yet he was given the keys to the Cadillac so he could transport Mr. Stewart, and on this date, to take him to to Elks Club. Never in the conversation about the use of the Cadillac was he advised to return at any certain time to pick up Mr. Stewart. In answer to a specific question, Mr. Stewart replied that he would have no objection if Adkins had wanted to run an errand during the time that Mr. Stewart was at the Elks Club. The jury was entitled to consider all of the facts and circumstances, including the relationship of the parties surrounding the use of the automobiles in arriving at whether or not a reasonable man would have inferred from such circumstances that permission was implied. It cannot be disputed that Adkins was charged with responsibility of maintaining the automobiles, that he did drive the two other automobiles of the Stewarts for his personal needs, and the mere fact that he failed to comply with the technicality of asking permission of Mr. Stewart on this specific occasion to use the automobile in question, did not prevent the jury determining that he had the implied permission of the owners on this occasion. It was quite obvious that a jury question was presented as to what reasonably could have been in Adkins' mind from the past course of events and as to the implied consent to use...
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