Auto-Owners Ins. Co. v. McGaugh, AUTO-OWNERS

• Decision Date: 30 March 1981
• Docket Number: No. WD,AUTO-OWNERS,WD
• Citation: 617 S.W.2d 436
• Parties: INSURANCE COMPANY, Respondent, v. Donald McGAUGH, Defendant, James E. Bowles and Betty J. Bowles, Defendants-Appellants, and State Farm Fire and Casualty and State Farm Mutual Automobile Insurance Company, Intervenors. 30911.
• Court: Missouri Court of Appeals

Page 436

617 S.W.2d 436

AUTO-OWNERS INSURANCE COMPANY, Respondent, v. Donald McGAUGH, Defendant James E. Bowles and Betty J. Bowles, Defendants-Appellants and State Farm Fire and Casualty and State Farm Mutual Automobile Insurance Company, Intervenors.

No. WD 30911.

Missouri Court of Appeals, Western District.

March 30, 1981.

Modified on May 12, 1981.

Rehearing Denied June 2, 1981.

Application to Transfer Denied July 14, 1981.

Michael J. Maloney of Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for defendants-appellants James & Betty Bowles.

Darwin E. Johnson & William T. Session of Linde, Thomson, Fairchild, Langworthy & Kohn of Kansas City, for respondent Auto-Owners Ins. Co.

Edward W. Mullen of Deacy & Deacy, Kansas City, for Intervenors State Farm Fire & Casualty and State Farm Mutual Automobile Ins. Co.

Before WASSERSTROM, C. J., Presiding, and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is a proceeding for declaratory judgment for determination of coverage under three automobile liability insurance policies. The judgment denied coverage. The judgment is affirmed.

In their brief, appellants present ten points, which are condensed into three for purposes of disposition. Eight of the ten points attack the giving or the refusal to give instructions and are denominated as the third point of error in this opinion. The first two points are: (1) The trial court erred in refusing to grant appellant's motion for directed verdict because as a matter of law, the use of the vehicle was with expressed or implied consent of the insured; and (2) The trial court committed plain error by (a) permitting respondent and intervenors to proceed as parties with the burden of proof, (b) treating the named insured as a party defendant, (c) failing to distinguish the insured from other parties defendant in the instructions and (d) permitting respondent to cross-examine the insured because in this action, respondent's counsel opposed the driver's interest, but in the companion third party action, he had contemporaneously acted as counsel for the driver. In the third point of error, challenge to the instructions is taken up in detail and recital of the alleged error is set forth at that portion of the opinion.

Before considering the facts giving rise to this cause, it is necessary to identify the parties herein, which are referred to in this appeal under their trial party designation.

Auto-Owners was the original plaintiff. Donald McGaugh was the named insured of plaintiff and was an original defendant. James and Betty Bowles were the occupants in a vehicle struck by McGaugh's vehicle. John Strine was the operator of McGaugh's vehicle at the time of the collision. In addition to McGaugh, both James and Betty Bowles, along with John Strine, were joined as parties defendant. State Farm Fire and Casualty Co. and State Farm Mutual Automobile Insurance Company were both insurors of the defendant John Strine and were permitted to intervene.

Plaintiff sought declaratory judgment to determine its liability under the omnibus clause of its policy issued to defendant McGaugh. Intervenors sought declaratory judgment to determine their liability under the non-owned vehicle clauses of their policies issued to defendant Strine. Defendants James and Betty Bowles sought and secured judgment for their damages against defendant Strine. In the instant proceedings, the issue of permissive use was the only issue submitted to the jury, and the jury found in favor of all three respondent insurors. This appeal followed.

Donald McGaugh was an over-the-road truck driver who owned his own truck and worked out of the Tri-State Terminal. John Strine was employed by Tri-State Terminal. On January 7, 1977, McGaugh drove his automobile (a Monte Carlo) to Tri-State because his truck was in the shop for maintenance and repair. During the day, another driver took McGaugh to pick up his truck. McGaugh returned to the terminal. McGaugh was to leave for Minneapolis that same evening, planning and expecting to be there by 8:00 a. m. the following morning.

Because of the foregoing events, McGaugh then had, at the terminal, his truck and automobile. A discussion took place between McGaugh and Strine concerning Strine's driving the automobile to McGaugh's brother's place of business. Since the evidence is disputed as to what was discussed between these two men concerning the automobile, and because the major issue on this appeal turns upon that evidence, specific reference is made hereto.

McGaugh testified that at about 4:00-4:30 p. m., he and Strine decided that Strine "would bring my car up to Riverside and I was to meet him up there at Riverside and if he had to go home, I said either I or my nephew would take you home." McGaugh further testified that the location in Riverside was that of his brother's place of business known as Fleet-Mate. In addition, McGaugh testified that Strine was, by his employment with Tri-State, involved in checking departing trucks and would have known McGaugh was leaving for Minneapolis that evening. McGaugh stated that Strine was aware the brother and sister-in-law of McGaugh had need of McGaugh's automobile for the coming weekend while McGaugh was out of town.

During the same afternoon, it developed that other drivers had to take trucks to the White Motor Company and needed return transportation to Tri-State Terminal. McGaugh and Strine discussed and agreed that Strine would pick up these other drivers, return them to Tri-State and then proceed to Riverside. McGaugh testified that a trip from White Motor Company to Tri-State to Riverside should not take too long and when McGaugh and Strine separated, McGaugh declared to Strine, "I'll see you in Riverside in about an hour."

McGaugh left the terminal around 5:00 p. m., arriving at Fleet-Mate in Riverside around 5:30-5:45 p. m. He waited for Strine until 9:30 p. m., when at such time he left for Minneapolis. McGaugh testified that he had never previously loaned his automobile to Strine, and that their contact was only intermittent through their respective employment relationship with Tri-State Terminal. McGaugh did testify that on one prior occasion, he had been in the Jockey Club (a barroom across from Fleet-Mate in Riverside) with Strine. There was no other evidence by McGaugh of any other social activity or past social conduct between him and Strine. McGaugh further testified that he had never mentioned Strine could deliver the automobile the next day or that Strine could use the automobile for any other purpose.

At approximately 7:50 p. m. that same evening, the police responded to a call at 4000 North Oak Trafficway, where Strine, while operating McGaugh's automobile, had struck the vehicle owned and occupied by James & Betty Bowles. The location of the collision was fixed as one and three-tenths miles north of the road division, which, if a driver were to turn left at the road division, he would be driving on the road which led to Riverside. That is, a left turn at the road's division would lead to Riverside, while a turn to the right would lead to North Oak Trafficway.

The investigating officer at the scene of the accident asked Strine where he was going, and Strine responded that "he was going nowhere".

Another witness testified he was one of the drivers who secured a ride with Strine from White Motor Company to Tri-State. This witness also testified that on prior occasions, Strine, McGaugh and Himself drank beers together in the Jockey Club.

Strine then testified that his memory of his conversation with McGaugh was as follows: "I was going to take his car that night, after I got off work, and he wanted me to take it to Riverside and I asked him * * * I said * * * well, I don't know whether I came out and asked him, I said, 'Is it okay for it to be there by tomorrow morning', and he said yeah, there was no really set time, and so I mentioned to him I might just go pick up my wife at home and have her follow me to Riverside in case that * * * like he was gone, or his nephew * * * his brother and sister-in-law, and there just * * * there really wasn't no comment, yes, no, or * * * it was just kind of left like that, that it wouldn't make any * * * it didn't make any difference."

Strine admitted that he knew McGaugh was going to Fleet-Mate in Riverside, but thought he was going to pick up some gear for his truck. Strine further testified that upon leaving, all he heard McGaugh say was, "I'll see you" or words to that effect.

Strine stated he was en route to pick up his wife at the time of the collision, that he was going to deliver McGaugh's automobile to Riverside and that his wife (Strine's) would drive him to their home. Strine further testified it would have taken approximately 30 minutes to drive from Tri-State to Riverside, but said he stopped at some bars and had some drinks.

When Betty and James Bowles filed their action against Strine, they made demand upon Auto-Owners for coverage under the omnibus clause of McGaugh's policy. Following such action, Auto-Owners alleged that Strine was making use of McGaugh's automobile beyond the scope of permission granted by McGaugh. Intervenors, insurors of Strine, joined the proceedings, seeking judgment of noncoverage under the non-owned vehicle clauses of their policies. The only question submitted to the jury was permission and the jury returned a finding in favor of all three insurors.

At this juncture, it would be well to set forth the pertinent portions of the disputed policy clauses:

Auto-Owners Policy

"III Definitions

A. 'Insured' shall mean:

(1) Wherever used in Coverages A and B and in other parts of this policy when applicable to these coverages, the named insured and any person using the automobile and any person or organization legally responsible for its use, provided the actual use thereof is with the permission of the named insured or if the named insured is an individual,...