American Employers' Ins. Co. v. Cornell

• Decision Date: 08 January 1948
• Docket Number: 28388.
• Citation: 76 N.E.2d 562,225 Ind. 559
• Parties: AMERICAN EMPLOYERS' INS. CO. v. CORNELL. [*])
• Court: Indiana Supreme Court

76 N.E.2d 562

225 Ind. 559

AMERICAN EMPLOYERS' INS. CO. v. CORNELL. ^[*])

No. 28388.

Supreme Court of Indiana

January 8, 1948

Appeal from Warrick Circuit Court; J. Harold Hendrickson judge.

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

John H. Jennings, of Evansville, and H. Harold Soshnick, of Shelbyville, for appellee.

YOUNG Judge.

This is an appeal from a judgment rendered against the appellant insurance company in a consolidated trial of two actions upon an automobile insurance policy. The purpose of these actions was to collect the amounts of judgments in the sums of $5,000 and $2,900 respectively. These judgments had previously been rendered in favor of appellee against one Ollie P. Beal who it was claimed, was driving the automobile described in the insurance policy involved when it struck appellee's tractor and caused the damages and injuries for which said judgments were rendered. The insurance policy was issued by appellant to one Dora Griffin who was the named insured therein. It was claimed that said Ollie P. Beal was driving this automobile at the time of the accident with the permission of the named assured, Dora Griffin, and that appellant became obligated to pay the judgments by reason of the terms of the insurance contract. A jury returned a verdict in favor of appellee for $5,000 and $2,900, with interest from the dates of said respective judgments against Beal and judgment was rendered against appellant accordingly.

The policy involved contained the following language:

'III. Definition of 'Insured': The unqualified 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 * * *.'

The principal question to be determined in this appeal is whether there was substantial evidence upon which the jury could find that Ollie P. Beal was driving assured's automobile with the permission of the assured named in said insurance policy.

Appellant first contends that there was no evidence of express permission from Dora Griffin, the insured, to Ollie P. Beal to drive the automobile at the time of the accident and that, therefore, the insurance policy did not cover Ollie P. Beal.

It seems to us, however, that the insurance contract does not require express permission and in the absence of such a requirement implied permission would be sufficient to bring a permittee within the protection of the policy. But the appellant also contends that there was no evidence upon which a jury could properly find implied permission from Dora Griffin to Ollie P. Beal to drive the car at the time of the accident. This requires us to examine the evidence to determine whether there is any evidence from which the jury could have found that Dora Griffin impliedly consented to the use of her automobile at the time of the accident by Ollie P. Beal.

There was evidence that Dora Griffin could not drive an automobile; that when the car involved in this accident was purchased Ed Griffin, her husband, traded in a Ford Sedan owned by him; that Ed Griffin handled the transaction and the certificate of title was made out in his wife's name; that Ed Griffin kept the keys of the car at all times; that his wife never kept the keys and that he had the entire responsibility of the car. A Statement by Dora Griffin was introduced in evidence in which she said: 'I left the responsibility and care of the car to my husband who bought it, he could let whoever he chose drive it. * * * My husband and I both took out the insurance papers with the Morris Plan. They knew that the automobile my husband traded in was his and registered in his name. The insurance company knew that my husband was paying for the car. My husband kept the keys to the auto and looked after it entirely.'

There was evidence that Dora Griffin and Ed Griffin lived downstairs and Ollie P. Beal lived upstairs in the same rooming house; that they were intimate friends, and visited taverns together daily; that Beal had driven the automobile involved a few times before the accident in the company of both Mr. and Mrs. Griffin and that he had driven the car when they were not along; that on the day of the accident Ed and Dora Griffin were sitting together in a tavern and they were joined later at their table by Ollie P. Beal and one Buck Lang; that Beal asked Ed Griffin if he could borrow the Griffin automobile to go up and see Lang's father; that Griffin told Beal that he could have the car if he would go along and drive it; that when the above conversation occurred Dora Griffin was sitting at the table and heard it; that she was on one side of the table and Beal was on the other, about a foot and a half or two feet away; that Ed Griffin handed Beal the keys and at the time Dora Griffin was sitting on his side of the table; that Dora Griffin had normal sight and hearing and that Beal asked for the car and keys in a normal conversational voice and that as the keys were being passed across the table Dora Griffin's face was turned in the direction of the keys and there was no obstruction to prevent her from seeing them, but that she remained silent.

Appellant contends that the silence of Dora Griffin under the circumstances was insufficient to show her implied permission to Beal to use the automobile, and as authority cites the following cases dealing with silence as creating an estoppel; Miller et al. v. Dill et al., 1898, 149 Ind. 326, 49 N.E. 272; Geisendorff v. Cobbs, 1911, 47 Ind.App. 573, 94 N.E. 236; Wilkerson et al. v. Wood et al., 1924, 81 Ind.App. 248, 143 N.E. 166; French v. National Refining Co., 1940, 217 Ind. 121, 26 N.E.2d 47.

These cases are not controlling here. The courts in those cases were considering silence as acquiescence in and agreement to the terms of a contract and whether or not silence under the circumstances involved in those cases gave rise to enforceable contract rights against the person remaining silent. We are dealing with a different question here. It is entirely possible for a person to have the implied permission by the silence of another to use an automobile without being in a position to enforce a right to such use against the person granting such implied permission. In our opinion there was ample evidence from which the jury might have found that Dora Griffin impliedly consented to the use of her car by Beal at the time of the accident.

The same question is presented by appellant in connection with instruction numbered six requested by appellee and given by the court, which instruction is as follows:

'The court charges the jury that if you should find from a fair preponderance of all the evidence bearing upon that issue that Edgar Griffin gave permission to the said Ollie P. Beal to drive said automobile, at the time of the accident described, and you should further find at said time, that at the time said Edgar Griffin turned the keys over to said Ollie P. Beal the said Dora Griffin was present and saw and heard all of said transaction and knew that her husband was permitting said Ollie P. Beal to use said car, the court charges the jury that under such circumstances the said Ollie P. Beal was using said automobile with the permission of not only the said Edgar Griffin, but also the said Dora Griffin, even though the said Dora Griffin was silent at said time.'

No objection was made that this instruction was mandatory in form, and for reasons which are obvious from what we have said above, we think there was no error in giving it.

Appellant also assigned as error the giving of instruction numbered five tendered by appellee, which instruction was as follows:

'The court charges the jury that in determining whether or not the said Ollie P. Beal was driving said automobile, at the time of the accident described, with the permission of the named insured in said policy of insurance, the court charges you that said permission does not necessarily have to be given by the said Dora Griffin to the said Ollie P. Beal, but if you should find from the evidence bearing upon that issue that the said Dora Griffin gave blanket authority to her husband, Edgar Griffin, to give permission to whomsoever he chose and you should further find that the said Edgar Griffin, pursuant thereto, gave permission to the said Ollie P. Beal to drive said Plymouth automobile, then the court charges you that said Ollie P. Beal was driving with the permission of the said Dora Griffin and under such circumstances you should so find.'

The appellant contends there is no evidence that Dora Griffin gave blanket authority to her husband, Edgar Griffin, to give permission to whomsoever he chose to drive the automobile. We believe that we have recited above sufficient evidence of blanket authority from Dora Griffin to her husband to justify submitting that issue to the jury in the foregoing instruction. Mercer Casualty Co. v. Kreamer, 1939, 105 Ind.App. 358, 11 N.E.2d 84.

Appellant also assigns as error the giving of instruction numbered eight tendered by appellee. This instruction sets forth in full §§ 39-3005 and 39-4309 Burns' 1940 Replacement, in each of which it is stated that all insurance policies such as the one here involved shall contain a provision insuring the owner of the automobile involved against liability for damages for death or injury to person or property resulting from negligence in the operation of such automobile by any person legally using or operating the same with the permission, express...