American Employers' Ins. Co. v. Cornell, No. 17551.

• Docket Nº: No. 17551.
• Citation: 73 N.E.2d 70
• Case Date: May 26, 1947
• Court: Court of Appeals of Indiana

73 N.E.2d 70

AMERICAN EMPLOYERS' INS. CO.
v.
CORNELL.

No. 17551.

Appellate Court of Indiana, in Banc.

May 26, 1947.

Appeal from Warrick Circuit Court, J. Harold Hendrickson, Judge.

Consolidated actions by Guy Q. Cornell and another against the American Employers' Insurance Company to recover on judgments obtained by the plaintiffs for personal injuries and property damage when an automobile insured by the defendant, struck the tractor of Guy Q. Cornell. From a judgment in favor of Guy Q. Cornell, the defendant appeals.

Judgment affirmed.

[73 N.E.2d 71]

Kahn, Little, Dees & Kahn, of Evansville, for appellant.

John H. Jennings, of Evansville, for appellee.

BOWEN, Chief Judge.

This is an appeal from a judgment rendered against appellant insurance company in a consolidated trial of two causes of action based upon judgments for personal injuries and property damage. Appellee's complaint sought to recover against appellant on a policy of liability insurance issued by appellant to one Dora Griffin. Appellee had previously recovered judgments against one Ollie P. Beal, whom it was claimed was driving the automobile described in appellant's insurance policy, which struck appellee's tractor inflicting the damages and injuries upon which said judgments were based. It was claimed that the said Ollie P. Beal was driving this automobile at the time of the accident with the permission of the assured, Dora Griffin, and that appellant became obligated to pay the judgments by reason of the terms of the policy.

The consolidated causes were tried to a jury, and a verdict was returned in favor of appellee for $5,000 and $2,900, that being the amounts of the two original judgments against Beal, with interest, and judgment was rendered on the same.

The appellant filed its motion for a new trial which was overruled, and this appeal followed.

The assigned error which is now presented to this court is the overruling of appellant's motion for a new trial, which was based upon the grounds that the verdict is not sustained by sufficient evidence and is contrary to law; and upon error of law occurring at the trial in the admission of certain evidence on behalf of appellee over appellant's objection and error in the giving and refusing of certain instructions.

The principal question to be determined in this appeal is whether the evidence shows that Ollie P. Beal, the person who was driving assured's automobile and against whom appellee obtained the two original judgments, was driving assured's automobile with the permission of the assured within the meaning of the terms of the insurance policy.

The terms of the policy provide: ‘III. Definition of ‘Insured’: The unqualified

[73 N.E.2d 72]

word ‘Insured’ wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named Insured, and except where specifically stated to the contrary, 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 with the permission of the named insured * * *'

Appellant by its Proposition No. 1 contends, that since the uncontradicted evidence shows, that, at the time of the accident with appellee, Ollie P. Beal was not driving the automobile with the express permission of the named assured Dora Griffin, the failure of appellee to show such express permission will prevent appellee as a matter of law from recovering from appellant.

It must be conceded that Beal at the time of the accident did not have the express permission of the owner to use the automobile. However, it is clear that the terms of the policy of insurance in the instant case did not require express permission of the assured in order to render the company liable. Also, the provisions of the Indiana statutes require that liability insurance policies must contain a provision, that, in such cases, the permission of the owner may be express or implied, which provision must be considered read into every policy of insurance. Burns Ind. Stats.Ann. 1933, Secs. 39-3005, 39-4309.

The appellant also contends that appellee has failed to show any evidence which as a matter of law would support a recovery against appellant on the theory that Ollie P. Beal at the time of the accident was using the automobile with the implied permission of Dora Griffin, the named insured.

The appellee admits that the burden was upon him to prove that he was entitled to recover under the terms and conditions of the insurance policy sued upon.

[1] By reason of the issues presented, we must examine the evidence. It is apparent that there is much confusion and contradiction in the evidence, particularly with reference to the testimony of Dora Griffin. However, it was for the jury to determine the questions of fact involved, and we are, therefore, bound to consider the evidence most favorable to appellee in determining the issues presented on appeal.

The evidence shows that Dora Griffin could not drive an automobile. That when the car involved in the accident was purchased, Ed Griffin, her husband, traded in a Ford Sedan owned by him on it. That Ed Griffin handled the transaction, and the certificate of title was made out in his wife's name. The Ed Griffin kept the keys to the car all the time; that his wife never kept the keys and that he had the entire responsibility of the car. Dora Griffin's statement was introduced in evidence that: ‘I left the responsibility and care of the car to my husband who bought it, he could let whoever he chose drive it * * *.’ ‘My...