Chase v. United States Fid. & Guar. Co. Harding

• Decision Date: 20 June 1947
• Docket Number: Nos. 8834, 8835.,s. 8834, 8835.
• Citation: 53 A.2d 708
• Parties: CHASE v. UNITED STATES FIDELITY & GUARANTY CO. HARDING v. SAME.
• Court: Rhode Island Supreme Court

53 A.2d 708

CHASE

v.UNITED STATES FIDELITY & GUARANTY CO.

HARDING

v.SAME.

Nos. 8834, 8835.

Supreme Court of Rhode Island.

June 20, 1947.

Exceptions from Superior Court, Providence and Bristol Counties; Louis W. Cappelli, Judge.

Actions on the case by Howard R. Chase, Jr., and Donald I. Harding, respectively, against the United States Fidelity & Guaranty Company for the amounts of unsatisfied judgments against John H. McKenzie for personal injuries caused by his negligent operation of an automobile owned by Thomas P. Carr, named as insured in a liability insurance policy issued by defendant. Verdicts for defendant, and plaintiffs bring exceptions after denial of their motions for new trial.

Exceptions overruled, and cases remitted to the superior court with direction.

See also 71 R.I. 81, 42 A.2d 488.

Sherwood & Clifford, Sidney Clifford, and Raymond E. Jordan, all of Providence, for plaintiffs.

Francis V. Reynolds, of Providence, for defendant.

CONDON, Justice.

These are actions on the case against an insurance company and were brought pursuant to General Laws 1938, chapter 155. The plaintiff in each case holds a judgment on which an execution has been returned unsatisfied against John H. McKenzie for personal injuries suffered by each plaintiff by reason of McKenzie's negligent operation of an automobile owned by Thomas P. Carr, the named insured in a liability insurance policy issued by the defendant. Each plaintiff based his right of action against defendant on a provision of the policy which extended coverage to any person while actually using the named insured's automobile with his permission. Whether such permission had been given was the main issue at the trial.

The cases were tried together before a justice of the superior court sitting with a jury and resulted in a verdict for the defendant in each case. Thereafter each plaintiff filed a motion for a new trial which was denied, and thereupon each duly prosecuted a bill of exceptions to this court. Each bill contains identical exceptions to those denials, to rulings of the trial justice on the admission and exclusion of evidence, and to submission to the jury of defendant's request for a special finding. However, it seems to us that the underlying reason of each exception raises the question whether, in the circumstances, and within the meaning of the policy, Carr permitted his automobile to be used by McKenzie at the time of the accident. The exceptions may, therefore, be considered as related and will be treated together.

The undisputed facts out of which the plaintiffs' causes of action arise are substantially as follows. On November 10, 1941, Thomas P. Carr parked his locked automobile in an alley, which extends from Westminster street to Exchange Place in the city of Providence, in this state, and took his keys with him to his place of employment near by. The alley is wide enough to accommodate only one automobile. At the time he parked, there were other automobiles in the alley parked in front of his automobile, which he had parked facing Exchange Place. Shortly after noon, or about 1 p.m., Stephen J. Femino, the janitor of the building on the west side of the alley, whose automobile was parked immediately in front of Carr's, obtained from Carr his keys so that he, Femino, could have Carr's automobile moved from in back of his automobile to enable Femino to drive his own automobile out of the alley.

Femino gave the keys to Anthony DiLisa, a young man employed in the same building as Femino, and requested him to drive Carr's automobile out of the alley into Westminster street, which he did. Then, after Femino had driven his automobile out, DiLisa drove Carr's back in the alley and left the keys in the automobile. DiLisa did not know Carr, but assumed that, as it was so close to lunch time, he would soon come for his automobile. Carr did not come for the automobile and he did not inquire why Femino had not brought or sent back the keys to him. About 4:30 or 5 o'clock that afternoon he learned, through the police department, that his automobile had been involved in an accident on Weybosset street. That was the first knowledge he received that his automobile was not parked in the alley.

John H. McKenzie, a seventeen-year-old Western Union delivery boy, who was employed in the same place as DiLisa, had driven Carr's automobile out of the alley sometime that afternoon in order, as he testified by deposition, that another automobile could be driven out of the alley. He further testified that DiLisa had obtained Carr's keys for that purpose and gave them to him, but this is denied by DiLisa. McKenzie testified that after driving Carr's automobile from the alley into Westminster street it was necessary, because of traffic conditions on that street, for him to drive west on Westminster street to Orange street and then to Weybosset street. While driving along that street he became involved in the accident which is the cause of this litigation.

It is apparent from the undisputed testimony that anyone parking his automobile in the alley as Carr did on the day in question would naturally expect that he might be required to move it or permit someone else to move it in order that other automobiles could be driven from the alley. It is equally apparent from such testimony that Carr intended to and did give Femino permission to move his, Carr's, automobile or to have someone else move it so that he, Femino, could drive his automobile out of the alley. When Femino selected DiLisa for this purpose, DiLisa had Carr's implied permission to drive his automobile, at least to enable Femino to drive out of the alley, even though Carr did not know DiLisa or did not know that he was to assist Femino. It is by no means apparent that Carr's delivery of his keys to Femino was intended to extend any further. As we understand the respective contentions of the parties, however, the real question here is whether McKenzie had the same implied permission that DiLisa had when later that same day McKenzie obtained the keys either from DiLisa or someone else, but not from Carr, and drove Carr's automobile from the alley and into Weybosset street, where the accident occurred.

Plaintiffs contend that he did. They base their contention on the circumstances in which automobiles were parked in the alley and more specifically on Carr's knowledge of such circumstances and his conduct in giving Femino the keys to his automobile without further concerning himself about his failure to return them and without inquiring for the rest of the day where they were. By such conduct plaintiffs claim substantially that Carr not only gave DiLisa implied permission to use his, Carr's, automobile, but that he...