Card v. Commercial Casualty Ins. Co.

• Decision Date: 18 January 1936
• Citation: 95 S.W.2d 1281
• Parties: CARD v. COMMERCIAL CASUALTY INS. CO.
• Court: Tennessee Supreme Court

Page 1281

95 S.W.2d 1281

CARD v. COMMERCIAL CASUALTY INS. CO.

Court of Appeals of Tennessee, Middle Section.

January 18, 1936.

Certiorari Denied by Supreme Court July 3, 1936.

Appeal in Error from Circuit Court, Davidson County; A. B. Neil, Judge.

Suit by Mary Sue Card, administratrix of the estate of Sam T. Card, deceased, against the Commercial Casualty Insurance Company. To review a judgment dismissing the action, plaintiff appeals in error.

Affirmed.

Bailey & Davies and Walker & Hooker, all of Nashville, for plaintiff in error administratrix.

W. P. Cooper and White & Howard, all of Nashville, for defendant in error insurance company.

CROWNOVER, Judge.

This was a suit to recover on an automobile liability policy issued by said insurance company to "R. R. Ogilvie & Co. and/or R. R. Ogilvie," it being averred that Robert Lasseter, who wrongfully killed plaintiff's intestate by the negligent operation of the automobile insured under said policy, and against whom judgment had been rendered, was an "additional assured" under said policy; that plaintiff had sued Robert Lasseter and had obtained a judgment for $10,000, on which an execution had been issued and returned nulla bona, as Robert Lasseter was insolvent, and this suit was brought against the insurance company on the insolvency clause of the policy.

The defendant pleaded the general issue of not guilty, nil debet, non assumpsit, and filed a special plea that the suit was not brought within two years, the time within which suits on the policy must be brought, and was therefore barred by said contract limitation of time.

The case was tried by the judge and a jury. At the close of the plaintiff's evidence the defendant moved the court for a directed verdict, which motion was sustained by the court, and the jury was directed to return a verdict for defendant, which was accordingly done, and judgment was entered dismissing the plaintiff's action.

Motion for a new trial having been overruled, the plaintiff appealed in error to this court, and has assigned as error the court's action in peremptorily instructing the jury to return a verdict in favor of the defendant.

The facts proper to be stated are as follows:

On February 1, 1931, the Commercial Casualty Insurance Company issued an automobile liability insurance policy to "R. R. Ogilvie & Company and/or R. R. Ogilvie." The policy covered ten automobiles, one of which was described as a Willys Knight coach, motor No. 79721.

The provisions of the policy as to "Named Assured" and "Additional Assured" are as follows:

"A — Assured and Named Assured. The unqualified term `Assured' wherever used in this policy shall include in each instance the Named Assured and any other person, firm or corporation coming within the provisions and conditions of Agreement 4, but the qualified term `Named Assured' shall apply only to the Assured named and described as such in the Warranties."

"(4) Additional Assured: That the terms and conditions of this policy are so extended as to be available, in the same manner and under the same conditions as they are available to the Named Assured, to any person or persons while riding in or legally operating any of the automobiles described in the Warranties, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the Named Assured, or, if the Named Assured is an individual, with the permission of an adult member of the Named Assured's household other than a chauffeur or a domestic servant, except that the terms and conditions of this policy shall not be available to a public automobile garage, automobile repair shop, automobile sales agency, automobile service station and the agents or employees thereof."

Section G of the policy provides:

"G. — Assured's Right of Recovery. No action shall lie against the Company to recover for any loss and/or expense covered by this policy, arising or resulting from claims upon the Assured for damages, unless it shall be brought by the Assured for loss and/or expense actually sustained and paid in money by him after actual trial of the issue, nor unless such action is brought within two years after payment of such loss and/or expense; nor for any other loss or damage covered by this policy unless action is brought within two years after the occurrence causing the loss or damage."

R. R. Ogilvie is an individual engaged in the business of selling lumber, builders' supplies, and coal, under the trade-name of R. R. Ogilvie & Co. Rollin Lasseter was manager of the business.

Robert Lasseter is the brother of Rollin Lasseter. At the time of this accident he made his home with Rollin Lasseter, and was not engaged in business of any kind on account of his health.

R. R. Ogilvie was the owner of the Willys Knight automobile involved in this action. He permitted Rollin Lasseter to use the car as he wished, for business or pleasure. Rollin Lasseter testified that Ogilvie turned the car over to him, saying: "Here is a car to be used by you, use it just as if it were your own."

On May 18, 1931, Rollin Lasseter instructed his brother, Robert Lasseter, to drive Sam T. Card to his home in this automobile. Card had been surveying a lot belonging to Mrs. Rollin Lasseter, on which she was preparing to build a house. On the way to Card's home this automobile collided with another, in which collision Card was killed.

On July 21, 1931, Mrs. Mary Sue Card, administratrix of the estate of Sam T. Card, deceased, filed suit in the circuit court of Davidson county against Robert Lasseter and others to recover damages for his wrongful death. Judgment was rendered in her favor against Robert Lasseter for $10,000.

After this judgment was rendered, Robert Lasseter's attorney notified the insurance company of the accident, suit, and judgment, and that appeal had not been perfected. It appears that this was the first notice the insurance company had been given of said accident and suit.

The judgment was not appealed from. Execution was issued on July 7, 1934, and was returned nulla bona on the same date. The judgment has never been paid.

On October 12, 1934, the administratrix filed this suit against the insurance company.

The plaintiff contends that Robert Lasseter was legally operating the automobile in so far as his right to operate same was concerned, and is insured under said policy, under section 4 of the policy, as additional assured. It is contended that Robert Lasseter had the implied permission of Ogilvie to drive this car; and that Rollin Lasseter had full power to permit him to use this car, and gave him such permission.

It is the defendant's contention that the directed verdict was properly granted for three reasons, as follows: (1) The evidence discloses that the particular automobile which was involved in the accident was not covered by the insurance policy; (2) that the said Robert Lasseter was not covered by the "additional assured clause" of the policy for the reason that he was not operating the automobile with the "permission of the named assured" as provided by the policy; and (3) this suit was not brought within two years "after the occurrence causing the loss or damage," as provided in the policy.

1. We think there is nothing in the contention of the defendant that the automobile involved in the accident was not covered by the insurance policy introduced in this suit. It is true the policy insures a Willys Knight automobile with motor No. 79721, and one Dan Lynch testified that the car driven at the time of the collision was No. 79921, but all the other testimony shows that the car insured was the car that was in the collision, and Ogilvie owned no other Willys Knight automobile.

2. It is not shown by any witness that Ogilvie ever gave permission to Robert Lasseter to use the car. It is not shown that Ogilvie ever knew that he had driven it. Nobody undertook to testify along this line but the two Lasseters, and they both said that as far as they knew Ogilvie did not know that Robert Lasseter had ever driven it. There is, therefore, no proof to establish an implied permission. There being no other evidence on the question of implied permission, the court did not err in taking the case from the jury.

Rollin Lasseter was the "additional assured" under this policy. His permission to another to drive it would be beyond the policy. The fact that the automobile was delivered to Rollin Lasseter for his use did not imply that he could allow an unknown and unapproved third person to drive it. American Automobile Insurance Co. v. Jones, 163 Tenn. 605, 45 S.W.(2d) 52.

In the case of American Automobile Insurance Co. v. Jones, supra, an employee of the company allowed a stranger to the company to drive the car without the knowledge of the company, and the court held that the policy would not be available to him.

When the named assured grants permission to a certain person to drive the automobile, then that person becomes an "additional assured" within the terms of the policy. Merely because the driver deviates from the intended route, or uses the car for a purpose not intended by the owner, does not remove him from the coverage of the insurance policy. The insurance company is not concerned as to where or for what purpose the car is being driven. And our Supreme Court has held that if a person is given "permission" or "consent" by the named assured to drive the car, then the deviation from the route or purpose by the driver does not remove him from the coverage of the "additional assured" clause. Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.(2d) 473, 72 A.L.R. 1368; American Auto Ins. Co. v. Jones, supra.

The determinative question is, Did the named assured expressly or impliedly give his permission for the person to drive the car? If he did not, then the company is not liable.

The "additional assured" clause in effect gives the named assured the...