Cartos v. Hartford Accident & Indem. Co

• Decision Date: 15 June 1933
• Citation: 169 S.E. 594
• Court: Virginia Supreme Court
• Parties: CARTOS. v. HARTFORD ACCIDENT & INDEMNITY CO.

169 S.E. 594

CARTOS.

v.HARTFORD ACCIDENT & INDEMNITY CO.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Error to Law and Chancery Court of City of Norfolk.

Action by notice of motion for judgment by Mamie C. Cartos against the Hartford Accident & Indemnity Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Argued before HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Q. C. Davis, Jr., and Herman A. Sacks, both of Norfolk, for plaintiff in error.

Rixey & Rixey, of Norfolk, for defendant in error.

EPES, Justice.

This is an action (instituted by notice of motion for judgment) brought by Mrs. Mamie C. Cartos against Hartford Accident & Indemnity Company on an automobile liability insurance policy issued by the defendant, which contains the provision required by Acts 1924, c. 339, p. 504 (section 4326a, Michie's Va. Code, 1930). There was a verdict and judgment for the defendant, to which judgment a writ of error has been allowed to the plaintiff.

The policy sued upon was issued to I. N. Rubin, and covered a Ford sedan owned by him, which was involved in an accident in which Mrs. Cartos was injured. Some time prior to the accident, this car had been placed by Rubin in the possession and keeping of his employee, Willie Johnson (colored), for use in delivering circulars for Rubin in Norfolk and its vicinity. Johnson had taken Mrs. Cartos and her two children from Norfolk to Suffolk in this car, and was bringing them back in it to Norfolk when the accident occurred. On this trip Johnson was engaged ina mission of his own, which had no connection whatever with his employment.

Mrs. Cartos brought an action against Rubin, as master, and Johnson, as his servant, to recover for the injuries received by her, Which she alleged had been caused by Johnson's negligent operation of the car. She recovered a judgment against Johnson for $3,000, but was cast in her demand against Rubin. Execution was issued on the judgment against Johnson and returned unsatisfied.

She then brought this action to recover under the policy issued to Rubin the amount of that judgment. The theory upon which the action is brought is that Johnson was driving the car with the permission of Rubin, and that he (Johnson) was therefore insured under the "additional assured" provisions of the policy against liability for the injuries received by Mrs. Cartos.

The insurance company defended on the ground that the car was not covered by the policy at the time of the accident, for two reasons: (1) Johnson was not driving the car with Rubin's permission; (2) at the time of the accident, the car was being used for "the carrying of passengers for a consideration."

The evidence upon the first point is that Rubin had turned this automobile over to Johnson to be used by him for business purposes, but had impliedly permitted him to use it to some extent, at least, for his private purposes. Were this court sitting as a jury, it might not have so found, but there is evidence from which a jury might draw the inference that Johnson was using the car at the time of the accident with Rubin's implied permission. There is, however, no evidence tending to show that he had his express permission.

On the second point there is no evidence tending to show that the car had been used for "the carrying of passengers for a consideration" on any occasion except on the trip on which Mrs. Cartos was injured. As to whether she and her children were being carried for a consideration on that occasion, the testimony of Mrs. Cartos is in direct conflict with that of Johnson, who was introduced as a witness by the insurance company.

Johnson's testimony was to this effect: On the Friday night before the accident Mrs. Cartos asked him if he would take her to Suffolk, and he told her that he could not take her in the morning, hut could take her "in the afternoon." On Saturday night he went back to the restaurant run by Mrs. Carlos' husband to get a "hot dog, " and she asked him if he could take her Monday evening. He told her that he would, and she promised to pay him $2 for taking her there and back. On Monday afternoon about 3 o'clock he drove the car around to the restaurant, found her and her two little boys dressed up and waiting for him, took them to Suffolk and was bringing them back when the accident occurred in which she was injured. He had no other reason for going to Suffolk that afternoon, and only went for the purpose of taking Mrs. Cartos, as he had agreed. Though she had promised to pay him $2 for the trip, she had not done so.

Mrs. Cartos' testimony is this: When Johnson Came into the restaurant Monday afternoon, she and her children had dressed in preparation for a trip to Suffolk. They intended to go into Norfolk on a street car, and take a bus from there to Suffolk. Johnson saw them, asked her husband where they were going, and was told by him, "Going to Suffolk." Johnson then said, "I am going to Suffolk and I will be glad to take them along." He took them to her sister's home in Suffolk, and was bringing them back to Norfolk when the accident occurred. Neither she nor her husband had any conversation whatever with Johnson about paying him anything for carrying her and her children to Suffolk; and neither of them promised or expected to pay him, or paid him anything for the trip. There is, however, some of her testimony which gives color to Johnson's version of what occurred.

The material parts of the policy sued upon read as follows (the italics being ours):

"Hartford Accident and Indemnity Com pany * * * (hereinafter called the Company) hereby agrees with the assured named in the Declarations forming part hereof in respect of bodily injuries or death resulting therefrom, or property damage, or damage by collision, accidentally sustained during the term of this policy by reason of the ownership or maintenance of any of the automobiles described in the Declarations and the use thereof for the purposes therein set out. as follows:

* * * * * *

"This agreement is subject to the following conditions:

"Additional Assured. A. This policy is extended to cover as an additional assured any person while legally operating any automobile described in the Declarations or any person, firm or corporation legally responsible for its operation, where the disclosed and actual use of the automobile is for 'Pleasure and Business' or 'Commercial' purposes as defined in Item 8, and the automobile is being so used with the permission of the named assured. * * * Provided however, (1) that this extension of the policy shall not enure to the benefit of a garage, automobile repair shop, sales agency or service station, or the proprietors, agents or employees thereof; (2) that the insurance under this policy shall be available first to the named assured, and the remainder, if any, to other persons entitled to benefits hereunder; (3) that the defenses of the company against the named as- sured shall be available to it against any additional assured included hereunder.

* * * * * *

"Exclusions. D. This policy shall not cover in respect of any automobile (1) while being operated by any person under the age fixed by law, or under the age of 16 years in any event, notwithstanding any lower legal age limit for automobile operators; (2) while being used in any race or speed contest; (3) while being used for towing or propelling a trailer unless such trailer is identified and described in the Declarations and additional premium is charged for such privilege; (4) while being used for any purpose oilier than those specified in the Declarations, (5) while being used elsewhere than within the limits of the United States (exclusive of Alaska, the Hawaiian, Philippine and Virgin Islands and Porto Rico) and the Dominion of Canada.

* * * * * *

"Declarations

* * * * * *

"8. The described automobile is and will be used for pleasure and business.

"If the use is for Pleasure and Business or for Commercial Purposes it shall be understood as defined below in (a) and (b) respectively.

"(a) The term Pleasure and Business Purposes is defined as (1) the pleasure and business use of automobiles of the private passenger type including those which have been altered by the attachment of a small box body, excluding renting, the carrying of passengers for a consideration, demonstrating, testing, wholesale or retail delivery or the towing of any trailer unless such trailer is identified and described herein and additional premium is charged for it."

The court gave five instructions, designated as instructions A, 2, 3, 5, and 6. Instruction 2 need not be further noticed. Instructions A and 3 read:

"A. The court instructs the jury that if you believe, from the evidence, that at the time Johnson injured the plaintiff he was operating the automobile with the express or implied permission of the insured, N. Rubin, mentioned in the insurance policy issued by the defendant; that the plaintiff obtained a judgment against Johnson for such injuries; that she has been unable to collect on said judgment because of Johnson's insolvency, then you must find for the plaintiff and fix her damages at the amount of said judgment, with interest thereon from the date thereof, and the costs, unless you believe, from the evidence, that at the time she was injured she was being carried for pay or some other consideration." (Italics ours.)

"3. The court instructs the jury that the burden of proof is upon the plaintiff to prove affirmatively by a preponderance of the evi dence that the trip from Norfolk to Suffolk and return at the time of the accident was being made with the permission of Mr. Rubin. If, after hearing all the evidence, you are of opinion that the plaintiff has failed to bear this burden of proof, you should find for the defendant."

Instructions 5 and 6 told the jury it should find for the defendant, if it believed from the evidence that Mrs. Cartos "promised to pay Willie Johnson...