Butterfield v. Western Cas. & Sur. Co.

• Decision Date: 22 December 1960
• Docket Number: No. 8914,8914
• Citation: 83 Idaho 79,357 P.2d 944
• Court: Idaho Supreme Court
• Parties: William Ray BUTTERFIELD, a minor, who sues by his next friend, Ellen Weatherston, Plaintiff-Respondent, v. WESTERN CASUALTY & SURETY CO., a corporation, Defendant-Appellant. Clayion RUMSEY, a minor, by his next friend, Layne Rumsey, Plaintiff-Respondent, v. WESTERN CASUALTY & SURETY CO., a corporation, Defendant-Appellant.

Page 944

357 P.2d 944

83 Idaho 79

William Ray BUTTERFIELD, a minor, who sues by his next friend, Ellen Weatherston, Plaintiff-Respondent, v. WESTERN CASUALTY & SURETY CO., a corporation, Defendant-Appellant.

Clayion RUMSEY, a minor, by his next friend, Layne Rumsey, Plaintiff-Respondent, v. WESTERN CASUALTY & SURETY CO., a corporation, Defendant-Appellant.

No. 8914.

Supreme Court of Idaho.

Dec. 22, 1960.

St. Clair, St. Clair & Hansen, Idaho Falls, for appellant.

Merrill & Merrill, Pocatello, for respondent, William Ray Butterfield, a minor, Hugh C. Maguire, Jr., Pocatello, for Clayton Rumsey, a minor, respondent.

McFADDEN, Justice.

Appellant Western Casualty & Surety Co., issued a policy of insurance to the Johnson Motor Company, of Rexburg, Idaho. This policy covered a certain 1954 Ford automobile. The automobile medical payments endorsement on the policy provided:

'The company agrees with the named insured, subject to the limit of liability, exclusions, conditions and other terms of this endorsement:

'Insuring Agreement

'1. Automobile Medical Payments. To pay all reasonable expenses incurred within two years from the date of accident for necessary medical, dental, surgical, X-ray, ambulance, hospital, professional nursing and funeral services, pharmaceuticals, eyeglasses and prosthetic devices:

Division 1. To or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from any automobile designated herein by the letter 'X', provided the automobile is being used by the named insured or with his permission;' (Emphasis added)

'* * * Limits of liability * * *

$1,000 each person.'

About June 6, 1958, Clayton Rumsey, one of the respondents, purchased a 1956 Dodge automobile from Johnson Motor Company. This car was not operating properly and was returned for repairs. Johnson Motor Company furnished Rumsey a Jeep to use, which he kept for a few days, and returned. The Dodge still wasn't working properly and was taken back to the Johnson Motor Company several different times for further repairs, and on each occasion Rumsey was furnished another vehicle for use. About June 30 or July 1, 1958, he was loaned the 1954 Ford in which he was injured.

July 2, 1958, Rumsey drove the Ford from his home in St. Anthony, Idaho, to Jackson, Wyoming, accompanied by William Ray Butterfield, the other respondent, and Reynold Palmer. On the return trip, outside of Jackson, Rumsey stopped and Butterfield started driving. The car was immediately involved in an accident with another car, and both of these respondents were seriously injured, resulting in medical and hospital expenses in excess of $1,000 in each instance.

Demand was made for payment under the terms of the insurance policy, which demand was denied, and these suits were instituted by both respondent, each for the full amount of medical payment insurance of $1,000, plus $500 attorney's fees. These actions were consolidated for trial by stipulation of counsel, and trial had before the court without a jury. Judgment was entered for each plaintiff in amount of $1,000 and attorney's fees. From these judgments this appeal is taken.

The problem to be resolved here is whether the car, at the time of the accident, was being used with the permission of Johnson Motor Company, the named insured. If there was no such permission for the use of this car by Rumsey, or by Butterfield, who was driving the car, then, of course, the appellant cannot be held liable.

It is without dispute that Rumsey had permission to use the Ford; the issue is whether the permission was limited, as to time, or as to place of use, or as to purpose of use. Appellant contends that the permitted use had terminated prior to the time of the accident, and that there was neither express nor implied permission for the car to be driven to Jackson, Wyoming, by Rumsey. It is further contended that the permission given was merely for Rumsey to go to and from work, and that the trip to Jackson was a material deviation from the permitted use given to him, and in any event that no permission had been given Butterfield to use the car.

There is a marked conflict in the evidence as to whether there was a time fixed for return of the car, or whether there were other limitations set as to place of use, or the purpose of use. Mr. Arnold, a salesman for the insured, loaned the Ford to Rumsey, and claimed to have advised Rumsey that his Dodge would be repaired by the following evening and that a prospective purchaser was to be there to inspect the Ford. Rumsey denied this and claimed that Arnold had agreed to phone him when the Dodge was ready. Arnold testified that he told Rumsey that the car was to be used only for transportation to and from work, and that on one occasion Rumsey, after request, was granted permission to use the car of the Johnson Motor Company, he was then using, to take a date to a movie. Arnold also testified that it was a company policy to loan a car to customer only to enable him to drive back and forth to work; Rumsey testified, however, that there were no restrictions ever mentioned as to the use of any of the various cars that were loaned, except he was to check the oil in a Chrysler loaned to him.

Concerning the use of the Ford, Rumsey testified:

'Q. Were there any restrictions of any kind placed by Mr. Arnold or anyone else against the use of that automobile by you? A. No.

'Q. When were you to return the Ford, was anything said about that? A. I was tired of making trips down to Rexburg from St. Anthony to get my car and so I asked Brent (Arnold) why he didn't call my grandmother when my Dodge was fixed and he said he would, and it must have been two or three days after I got the Ford that no call ever came. I was wanting my Dodge back and two or three times I asked Mother if any call had ever been made, and none had ever been.

'Q. So you never did receive any word from Mr. Arnold or anyone else from Johnson Motor Co., that you should return to pick up your Dodge car, is that correct? A. Yes.

Appellant's contention that the period of permissive use had expired prior to the time of the accident is negated by the trial court's finding that no restrictions were placed on the use of the car, and by its conclusion that at the time of the accident the automobile was being used with permission of the named insured. The conflict in the evidence as to other restrictions on the use of the car was resolved by the finding of the trial court

'* * * that the automobile, the 1954 Ford, was loaned by Johnson Motor Co. to Clayton Rumsey without special restriction to replace the automobile which he had purchased and was unable to use.'

The courts findings, based on competent, though conflicting evidence, cannot be disturbed on appeal. Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063; Fort Hall Indian Stockmen's Ass'n, Inc. v. Thorpe, 82 Idaho ----, 354 P.2d 516, and cases cited therein.

The remaining issue is whether the use of the vehicle at the time of the accident was still with the permission of the named insured, (Johnson Motor Co.,), even though Rumsey, while present in the vehicle, was not driving.

Appellant relies strongly on the cases of American Automobile Ins. Co. v. Jones, 163 Tenn. 605, 45 S.W.2d 52, and Card v. Commercial Casualty Ins. Co., 20 Tenn.App. 132, 95 S.W.2d 1281 and contends them to...