Beatty v. Hoff

• Citation: 382 Pa. 173,114 A.2d 173
• Parties: James F. BEATTY, Appellant, v. Carl R. HOFF, Defendant, Car & General Insurance Company, Limited, Garnishee. Robert H. WATSON, Appellant, v. Carl R. HOFF, Defendant, Car & General Insurance Company, Limited, Garnishee.
• Decision Date: 24 May 1955
• Court: United States State Supreme Court of Pennsylvania

114 A.2d 173

382 Pa. 173

James F. BEATTY, Appellant, v. Carl R. HOFF, Defendant, Car & General Insurance Company, Limited, Garnishee.

Robert H. WATSON, Appellant, v. Carl R. HOFF, Defendant, Car & General Insurance Company, Limited, Garnishee.

Supreme Court of Pennsylvania.

May 24, 1955

Actions against insurer on automobile collision policy containing an omnibus clause. From adverse judgment of the Court of Common Pleas of Butler County, Nos. 76 and 77, June Term, 1952, Clyde S. Shumaker, J., the plaintiffs appealed. The Supreme Court, No. 75, March Term, 1955, Chidsey, J held that evidence was insufficient to sustain finding that use of automobile by insured's son at time of collision was with insured's consent.

Judgments affirmed.

Jones J., dissented.

William A. Watson, Saul J. Bernstein, Butler, for appellants.

Lee C. McCandless, Butler, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

CHIDSEY, Justice.

At 11 P.M. on May 26, 1949, Carl R. Hoff was operating a 1940 Buick sedan belonging to his father, Charles W. Hoff, and became involved in a three-car collision on Highway Route 68 in Butler County, Pennsylvania. The father was not in the car at the time of the accident. The other two cars were operated by James F. Beatty and Robert H. Watson, respectively. In separate actions of trespass brought by Beatty and Watson against Carl R. Hoff, Beatty recovered a verdict in the amount of $5,584.81 and Watson a verdict of $1,499. Judgments were entered upon these verdicts.

Charles W. Hoff, the father, had a policy of insurance issued by the appellee, Car & General Insurance Company, Limited, covering the Buick Automobile which his son was driving which contained a so-called omnibus clause, 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 * * *'. (Emphasis supplied.)

Beatty and Watson issued attachment executions on their respective judgments, naming the appellee insurance company as garnishee. In answer to interrogatories the garnishee denied liability, alleging that Carl R. Hoff was not driving with the permission of Charles W. Hoff, the insured, at the time of the accident and therefore was not covered by the policy. The two cases were consolidated and tried before the same jury which rendered verdicts in favor of Beatty and Watson in the respective amounts of their judgments. The garnishee filed a motion for judgment non obstante veredicto in each case which, after argument, was granted, and Beatty and Watson appeal from the judgments respectively entered in favor of the garnishee. The cases were jointly argued before this Court by the same counsel and they will be together considered and disposed of in this opinion.

The sole question for determination is whether the finding of the jury, upon which its verdict was necessarily predicated, that Carl R. Hoff had either express or implied permission of his father, the owner, to drive the automobile at the time of the accident, is sufficiently supported by the evidence. The court below concluded it was not.

On behalf of the garnishee-appellee evidence was adduced of a signed statement by Carl R. Hoff (who was in Korea at the time of the trial) in which he stated that he was using the car without his father's permission; that he had taken the keys to the car without his father's knowledge, and that he did not have an operator's license. There was also introduced a signed statement by the father (who died between the date of the accident and the trial) to the effect that he had never permitted Carl to drive his car and that he did not know his son had taken the car on this occasion. Mayme A. Hoff, Carl's mother, testified that her husband kept the keys to the car in his coat which was ‘ hanging up in the kitchen’ when Carl apparently took the car; that her husband was then in his bedroom sleeping; that she never knew of Carl driving the car nor, to her knowledge, was his father aware of it. Mrs. Hoff also testified that prior to the accident Carl had an old car which he drove without an operator's license; that she and her husband knew this and didn't prohibit or admonish him.

The evidence relied on by the appellants, hereinafter reviewed, consisted of the testimony of witnesses directed toward showing a course of conduct establishing such acquiescence by the father in the son's use of the car as to imply its permissive use at the time of the accident.

In Brower, to Use of Brower v. Employers' Liability Assurance Co., Ltd., 318 Pa. 440, at page 444, 177 A 826, at page 828, Mr. Justice Kephart, speaking for the Court, said: ‘ For liability to attach in any event under an omnibus clause of this type, the operator must be shown to have obtained possession of the car lawfully and with the permission, express or implied, of the named assured; if there is a complete lack of permission to use the car for any purpose, the operator is clearly not within the coverage of the policy. Morin v. Travelers' Ins. Co., 85 N.H. 471, 160 A. 482; Globe Indemnity Co. v. Nodlere, 10 Cir., 69 F.2d 955. The necessary permission may be in the form of express or implied affirmative consent, or it may result by implication from the relationship of the parties or a course of conduct in which the parties have mutually acquiesced. Maryland Casualty Co. v. Ronan, 2 Cir., 37 F.2d 449, 72 A.L.R. 1360; see Kazdan v. Stein, 26 Ohio App. 455, 160 N.E. 506,affirmed 118 Ohio St. 217, 160 N.E. 704.’ In Kazdan v. Stein, thus cited in the Brower case, it is stated [ 26 Ohio App. 455, 160 N.E. 507]:‘ Whether a consent is express or implied depends upon the conduct of the party whose consent must be had. Whatever may be the act, circumstance, or fact, in order to recover under the terms of the agreement, there must be a connection made with the conduct of the party whose consent, either express or implied, is necessary. Thus there may be acts, circumstances, and facts, such as the continued use of the car, but unless they attach themselves in some way to the acts of the party whose consent must be had there can be no implication...