Columbia Casualty Co. v. Lyle, 7714.

• Decision Date: 21 February 1936
• Docket Number: No. 7714.,7714.
• Parties: COLUMBIA CASUALTY CO. v. LYLE.
• Court: U.S. Court of Appeals — Fifth Circuit

81 F.2d 281 (1936)

COLUMBIA CASUALTY CO. v. LYLE.

No. 7714.

Circuit Court of Appeals, Fifth Circuit.

January 23, 1936.

Rehearing Denied February 21, 1936.

Lamar Cecil, of Beaumont, Tex., for appellant.

J. Austin Barnes, of Beaumont, Tex., for appellee.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellee, struck and injured by a truck owned by Yount and driven by Jolivet, a negro farm hand, sued them both for damages. The jury found Jolivet negligent, but that at the time and place in question he was not driving the truck in the furtherance of the business of Yount. From the judgment entered on that verdict for plaintiff against Jolivet for the damage suffered, $5,484, but that he take nothing against Yount, there was no appeal. Appellee then brought this suit to make his judgment out of appellant, as insurer in an automobile insurance policy issued on the truck to Yount, and/or Yount-Lee Oil Company, as named assureds. His claim was that, when the truck struck him, Jolivet was driving it with the permission of Yount, the named assured, and was therefore covered by it as "additional assured."

The defense was that Jolivet was not covered by the policy as "additional assured" both because at the time of the collision the truck was being used for purposes not covered by the policy and because it was being driven, not only without permission from the named assured to do so, but against his orders.

Both plaintiff and defendant moving at the close of the evidence for an instructed verdict, the District Judge took the case from the jury and determined it in plaintiff's favor. It is here on the sole point of law that the evidence, viewed in the light most favorable to appellee, demanded a verdict for appellant. Fourth National Bank in Wichita v. Gainesville National Bank in Gainesville (C.C.A.) 80 F.(2d) 490; Globe Indemnity Company v. Nodlere (C.C.A.) 69 F.(2d) 955. We think it did.

The following are the pertinent declarations of the policy: —

"1. Name assured — M. F. Yount and/or Yount-Lee Oil Company.

"2. Address of Assured — No. c/o Yount-Lee Oil Co. (San Jacinto Building) City or Town of Beaumont, County of Jefferson, State of Texas.

"3. The named assured is Individual and Corporation, and the Named Assured's occupation or business is Crude Petroleum Developers, Producers and Transporters.

"4. The motor vehicles described will be principally used, maintained and garaged in the city or town of Beaumont, Texas.

"5. The motor vehicles described in Declarations and the purposes for which they are and will be used are as follows —

"B. Truck type and commercial delivery motor vehicles (if any) used for Transportation or Delivery of Materials or Merchandise in direct connection with the Assured's business occupation as stated in Declaration 3, and motor vehicles of the private passenger type which have been altered and designed for such purposes, including the loading and unloading thereof and, if the Named Assured is an individual, or a copartnership, shall include incidental pleasure use for Named Assured's family."

Among the pertinent insuring agreements are: "Additional Insured. — (7) The insurance granted by the foregoing provisions shall apply in the same manner and under the same conditions as it applies to the Named Assured, to any person operating and/or to any other person while riding in, and/or to any other person, firm or corporation legally responsible for the operation of any motor vehicle described in said Declarations, or for whom said motor vehicle is being operated with the permission of the Named Assured."

The pertinent exclusions are:

"8. No Insurance is granted by This Policy —

"(c) While any motor vehicle is being used for purposes other than those specified in the Declarations."

Conditions:

"Assured and Named Assured:

"(A) The unqualified term `Assured' wherever used in this policy shall include the Assured, whether one or more named and described as such in the Declarations, and in addition thereto, any person, firm or corporation entitled to insurance under the provisions and conditions of Insuring Agreement 7 hereof; but the qualified term `Named Assured' shall apply only to the Assured named and described as such in the Declarations."

Insolvency of Assured: "(E) The insolvency or bankruptcy of Assured shall not release the Company from payment of damages sustained or loss occasioned during the life of the policy, and if execution against Assured in an action for damages is returned unsatisfied because of such insolvency or bankruptcy, the injured or his personal representative in case of death, may maintain an action against the company for the amount of the judgment obtained not exceeding the limits of the policy."

No testimony was offered at all contradicting the finding of the jury in the damage suit that in driving the truck at the time and place of the injury Jolivet was not engaged in the furtherance of the business of Yount, the named assured. None was offered to the effect that he was driving with Yount's express permission. It was claimed by appellee, and the evidence he introduced was for the purpose of establishing, that Jolivet was driving with Yount's implied permission. These are the facts as testified to by Yount, Helmke, his farm manager, and Jolivet, a workman on the farm, on which appellee relies to make this a jury issue.

Yount, owning a farm near Beaumont, employed Frank Helmke as caretaker and Jolivet as helper. He had intrusted Helmke with the truck in question under the strictest orders that no one but Helmke should drive it off the farm. The farm was being cleared and beautified as a personal hobby. Nothing was raised for sale or sold from it. Helmke, however, was authorized to use the truck, and did use it, to bring milk and eggs and other produce from the farm to Yount's house. Yount at no time either authorized or permitted any one else to authorize or knew that Jolivet had been or would be permitted to drive the truck on the public highways. On the day in question Helmke, on his own responsibility, and as he admits, directly contrary to Yount's positive orders, permitted Jolivet to use the truck to take some wood and milk to Jolivet's house for Jolivet's personal use. He, however, gave him positive instructions not to use the truck except to go straight to his home and back. When the accident occurred, Jolivet was driving from his home to the home of a woman who helped him with his children, on a personal errand of his own.

He was therefore using the truck not only without, and directly contrary to, any permission or authority from Yount, but contrary also to the direct orders of Helmke. Yount testified that he gave general and positive instructions to Helmke that he alone was to drive the truck; that no one else could do so. Helmke, at one place in his testimony, said: "Mr. Yount furnished me with a half ton truck to be used on the farm for general use, and for making deliveries to his home in town. I was to make those deliveries and no one else was to make them. Mr. Yount gave me instructions to do all the deliveries myself, and if that truck went off the place I was to drive it."

At other places in his testimony he said: "The truck was furnished to me. He told me to do the driving, and he never changed those instructions. I...