Ball v. Inland Mut. Ins. Co., 59-51

• Decision Date: 02 June 1960
• Docket Number: No. 59-51,59-51
• Citation: 121 So.2d 470
• Parties: Fred S. BALL, Appellant, v. INLAND MUTUAL INSURANCE CO., Huntington, West Virginia, Appellee.
• Court: Florida District Court of Appeals

Page 470

121 So.2d 470

Fred S. BALL, Appellant, v. INLAND MUTUAL INSURANCE CO., Huntington, West Virginia, Appellee.

No. 59-51.

District Court of Appeal of Florida, Third District.

June 2, 1960.

Rehearing Denied June 21, 1960.

Headley, Mosca & Sudduth, Miami, for appellant.

Morehead, Forrest, Gotthardt & Greenberg, Miami, for appellee.

HORTON, Chief Judge.

This appeal was taken by the plaintiff from a judgment entered upon a directed verdict in a garnishment proceedings.

Prior to the institution of the garnishment proceedings, the plaintiff had recovered, in a personal injury action arising from an automobile accident, a judgment against one McNaughton, the driver of a truck owned by Bestways, Inc., and insured by Inland Mutual Insurance Company, the appellee here. In the garnishment proceedings from which this appeal arises, the plaintiff proceeded on the theory that the insurance carrier was indebted to the driver, McNaughton, by the terms of the policy insuring Bestways, which provided:

'With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and 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 by the named insured or with his permission.'

The garnishee denied liability, contending that at the time of the accident, McNaughton was not driving the truck with the permission of the insured.

At the conclusion of the testimony of appellant's sole witness, McNaughton, he rested his case. The trial court thereupon directed a verdict for appellee. Judgment was entered upon the directed verdict and appeal was taken from that judgment.

The sole question raised on appeal is whether or not the trial court erred in granting the appellee's motion for directed verdict at the close of appellant's case.

Appellant has cited, and we are cognizant of the many cases latest of which is Brady v. Kane, Fla.App.1959, 111 So.2d 472, 474, which state the proposition that:

'On a motion for directed verdict the trial court will consider the testimony adduced in the cause in the light most favorable to the party moved against; and the moving party admits every conclusion favorable to the adverse party which may rationally be inferred by the jury from the evidence before it.'

However, in applying the principle enunciated in the Brady case, we must also consider the application of the converse rule which requires the trial court to direct a verdict for the defendant if, from the evidence submitted, a jury could not lawfully find a verdict for the plaintiff. See Swilley v. Economy Cab Co. of Jacksonville, Fla. 1951, 56 So.2d 914; Gilmer v. Rubin, Fla.App.1958, 98 So.2d 367; Traurig v. Spear, Fla.App.1958, 102 So.2d 165; Manganelli v. Covington, Fla.App.1959, 114 So.2d 320.

Upon a careful review of the record and application of the principles stated, we conclude that the able trial judge was correct in directing a verdict since the evidence demonstrated that a lawful verdict for the appellant could not have been rendered by the jury.

Affirmed.

CARROLL, CHAS., J., concurs.

MILLEDGE, STANLEY, Associate Judge, dissents.

MILLEDGE, STANLEY, Associate Judge (dissenting).

This seems to be the first time an appellate court in Florida has been called upon to determine whether a motor vehicle liability policy, containing an omnibus clause pursuant to the requirement of § 324.151, Fla.Stat., F.S.A., should receive the liberal construction stated in the first section of Chapter 324, Florida Statutes, F.S.A., so as to consider the operator as having control by virtue of initial permission of the owner, or receive a strict construction excluding the operator from the policy for the want of specific permission to use the vehicle at the precise time of the accident.

The great public importance of the question decided impels me not merely to record my disagreement with the decision, which can only be supported on the theory that a strict construction of the financial responsibility statute is applied, but to discuss the basis for my disagreement.

The plaintiff obtained a judgment against McNaughton, the driver of a truck and tractor owned by Bestway, Inc. The owner was originally a co-defendant, but plaintiff took a voluntary non-suit against this defendant. Subsequent to the judgment, the plaintiff brought the present garnishment proceeding against the insurer under a liability policy obtained by Bestway Inc., which contained the following omnibus clause:

'* * * the unqualified word 'insured' includes the named insured and 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 by the named insured or with his permission.'

The plaintiff contends that terms of the insurance policy included the drive, McNaughton, as an insured, and the defendant insurance company contends otherwise. Whether the driver was an insured depends on whether he was using the truck at the time of the accident with the permission of the owner. The plaintiff undertook to prove permission by the driver, the defendant in the negligence action. At the conclusion of the driver's testimony, the plaintiff rested. On the defendant's motion, the trial judge directed a verdict for the defendant. During the negligence action, the driver gave a deposition to the effect that at the time of the accident, which occurred when the driver was returning drunk from a tavern or nightclub, he was driving without permission, and at that time he was not employed by the owner of the truck. At the trial in the present case, he testified that he did have permission. So far as the testimony and the depositions were in conflict, the determination of which version was true was a question for the jury. In my opinion, there was testimony, which, if believed, would warrant a jury in finding that the owner, in addition to express consent to use the truck for a business purpose, gave implied consent to the driver to use the truck for his personal affairs, but my dissent is not based on so narrow a question. I think that the directed verdict was wrong even if it were correctly assumed that the driver had no specific permission, express or implied, to use the truck except as explicitly directed. One fact is perfectly clear and without any contraction. That is, that Bestways turned the truck over to the driver in Tampa for the purpose of putting it on the road earning money for the owner through leases from various shippers arranged through Traffic Advisory Service in Miami. These shippers paid the driver for his services during each shipment. If the driver obtained a cargo for a distant point and had no return load, he would telephone the owner in Tampa for instructions. There was nothing in the driver's testimony that indicated that the owner put express restrictions against personal use, but this makes no difference. All that is significant is that the driver had initial permission to use the truck. Actually, he had more than mere permission for he was an agent of the owner. To conclude that initial permission alone is sufficient to bring the driver within the protection of the policy as an insured it is necessary that the policy be given a liberal construction. In some states it would be rational to give such an omnibus clause in a policy a strict construction, but I cannot see how this can be done in Florida without repudiating forty years of the dangerous instrumentality doctrine applied to automobiles on the highways and without ignoring the public policy declaration in Florida's financial responsibility law as to drivers and operators of motor vehicles and the effect given similar statutes in other states.

It is not just an insurance policy here which must be construed but a statute, Chapter 324, Florida Statutes, F.S.A., for the policy was written pursuant to the requirement of the statute. This is true, although the terms of the omnibus clause here are not identical with the requirements of law. The first section of Chapter 324--s 324.011, Fla.Stat., F.S.A.--states the purpose of the legislation. It reads as follows:

'It is the intent of this chapter to recognize the existing rights of all to own motor vehicles and to operate them on the public streets and highways of this state when such rights are used with due consideration for others; to promote safety, and provide financial security by such owners and operators whose responsibility it is to recompense others for injury to person or property caused by the operation of a motor vehicle, so it is required herein that the owner and operator of a motor vehicle involved in an accident shall respond for such damages and show proof of financial ability to respond for damages in future accidents as a requisite to his future exercise of such privileges.'

Nothing could be clearer than this expression of a public policy to implement a remedy available to the public already afforded by the rules of liability as declared by the courts of Florida. It is legislative recognition of the dangerous instrumentality doctrine. By providing for financial responsibility it affords a practical means of assuring at least some compensation for those persons damaged on the roads by those legally liable therefor.

The statute affords a number of ways for the owner or operator to prove his financial responsibility, one of which is 'furnishing satisfactory evidence of holding a motor vehicle liability policy' (§ 324.031) as defined in § 324.021(8) and § 324.151. So far as is here germane, § 324.151 reads as follows:

'An owner's liability insurance policy shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby granted and shall insure the owner named therein...