Bekaert v. State Farm Mutual Automobile Ins. Co., 15298.
| Decision Date | 23 February 1956 |
| Docket Number | No. 15298.,15298. |
| Citation | 230 F.2d 127 |
| Parties | Elizabeth BEKAERT, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert C. McGowan and James J. Fitzgerald, Omaha, Neb., for appellant.
C. F. Connolly, Omaha, Neb. (Robert G. Fraser and Fraser, Connolly, Crofoot & Wenstrand, Omaha, Neb., with him on the brief), for appellee.
Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges.
An injured party obtained a judgment in negligence against the driver of an automobile, on which execution was returned unsatisfied. She then sought, by garnishment proceedings under Nebraska law, to collect the amount of the judgment from the liability insurer of the owner of the car, on the basis that the automobile was being used at the time of the accident with the named-insured's permission, and that the driver therefore was covered, under the omnibus clause of the policy, as an additional insured.1
On a jury-waived trial of the issue thus presented, the court made a finding of fact that the driver's use of the car at the time of the accident had not been with the named-insured's permission. The insurer was accordingly held to be without liability on its policy for the judgment against the driver, and the injured party has appealed.
The controlling question here is whether the evidence required a holding that permission on the part of the named insured to the driver's use of the car at the time of the accident had impliedly existed in the situation as a matter of law, or whether, under Nebraska law, the testimony, circumstances and inferences possible therefrom could properly be viewed as involving such unabsoluteness or equivocalness of intent, understanding and relationship between the parties, in respect to the use of the car at the time of the accident, as entitled the question of the owner's permission to be appraised and resolved by the trial court as one of fact, whether from direct evidence or on persuasive implications.
First, it may be noted that Nebraska has never made any such liberal or extreme interpretation and application of its statutory omnibus-clause prescription (set out in footnote 1 hereof) as that any permission, whether general or special, given by a named insured to the use of the automobile by another, will, as a matter of law, extend coverage to the permittee in whatever use he may make of the car, unless his possession thereof shall have become unlawful as against the named insured, in the sense that what he has done with the car has amounted to a conversion by him. See generally 5 Am.Jur., Automobiles, §§ 537, 538, 539, pp. 807-808; 5 A.L.R.2d 624, annotation.
On the contrary, such Nebraska cases as there are in the omnibus-clause field, appear to make the question of permission on the part of a named insured to the use of the automobile by another at the time of an accident one that ordinarily is to be resolved, in its express or implied existence, as a matter of actual and found fact. Cf. Wigington v. Ocean Accident & Guarantee Corp., 120 Neb. 162, 231 N.W. 770; Andrews v. Commercial Casualty Ins. Co., 128 Neb. 496, 259 N.W. 653; Witthauer v. Employers Mutual Casualty Co., 149 Neb. 728, 32 N.W.2d 413.
In each of these three cases, as examination will show, the Nebraska Supreme Court primarily engaged in testing the sufficiency of the evidence in the record to sustain the factual appraisal and general finding of permission or lack of permission which the trial court had made. And the seemingly strict view taken by the Court in the latest of them (the Witthauer case), of the facts and circumstances bearing on the question of authorized or unauthorized use, and its overthrowing on that basis of the trial court's finding there of existing permission, can hardly be said, we think, to have required the District Court here, in its attempted appraisal and application of Nebraska law, to recognize any wide margin of general deviation allowance, in its resolution of whether the use of the car at the time of the accident had in fact been one of actual (whether expressly or impliedly established), existing permission.
Under the Nebraska decisions, and on the evidence in the record, we can not convictionally say that the trial court's determination in the present situation...
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