Derusha v. Iowa Nat. Mut. Ins. Co.

• Decision Date: 01 December 1970
• Docket Number: 254,Nos. 253,s. 253
• Citation: 49 Wis.2d 220,181 N.W.2d 481
• Parties: Thelma DERUSHA et ux., Respondents, v. IOWA NATIONAL MUTUAL INS. CO., Appellant. Alf GRANBERG, Respondent, v. IOWA NATIONAL MUTUAL INS. CO., Appellant.
• Court: Wisconsin Supreme Court

Page 481

181 N.W.2d 481

49 Wis.2d 220

Thelma DERUSHA et ux., Respondents, v. IOWA NATIONAL MUTUAL INS. CO., Appellant.

Alf GRANBERG, Respondent, v. IOWA NATIONAL MUTUAL INS. CO., Appellant.

Nos. 253, 254.

Supreme Court of Wisconsin.

Dec. 1, 1970.

This controversy is over whether the defendant-appellant Iowa National Mutual Insurance Company's automobile liability insurance policy, issued on automobiles owned by Edwin Peterson Of Marinette, Wisconsin, provided coverage for a Marinette accident in which plaintiffs-respondents allegedly were injured and involving a 1966 Chrysler owned by Edwin Peterson and driven by his son Gary who was fourteen years of age at the time. The son did not have an operator's license.

On the date of the accident, Gary Peterson lived at home with his parents and his two older sisters, one numarried and the other married and living at the Peterson home with her husband and infant son. The family owned two cars, the Chrysler involved in the accident, and a Corvair, both of which were insured with defendant insurance company. The policy of insurance contained the omnibus clause required by sec. 204.30, Stats.

A separate trial was had on the coverage question. This trial was to the court sitting without a jury. The trial court disbelieved testimony by Mr. and Mrs. Peterson and Gary that permission was denied. The court held such testimony 'wholly incredible' and in the light of the circumstantial evidence found that Gary was driving with 'permission' as required by the omnibus clause of the policy.

From an interlocutory judgment entered following the announcement of the trial court's findings of fact and conclusions of law defendant appeals.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for appellant.

Norman B. Langill, Marinette, for respondents Derusha.

Murphy & Murphy, Marinette, for respondent Granberg.

WILKIE, Justice.

This is a fact case. The sole issue on this appeal is whether the trial court's finding that Gary Peterson was driving with permission as required by the omnibus coverage clause of the policy is against the great weight and clear preponderance of the evidence. ¹

In reviewing the record we do not reverse just because we find some evidence to support a contrary finding. ² We must be satisfied that the finding is against the great weight and clear preponderance of the evidence.

Under the omnibus clause required to be included in all automobile policies in Wisconsin, ² permission to drive may be branted to any person by the insured or an adult member of his household. The burden of proving the requisite permission rests with the party seeking to establish coverage. ⁴ This permission may be implied as well as actual, ⁵ however, and whether the permittee is in possession of a valid operator's license is of no consequence. ⁶ This implied consent depends on the state of mind of the permitter, ⁷ but it may be proved by circumstantial evidence. In effect, implied permission is but actual permission circumstantially proven.

It is also well settled that these clauses will be broadly interpreted since the statute requiring them is remedial in nature. ⁸

'Omnibus coverage insurance * * * is, in part at least, for the benefit of the injured party, Pavelski v. Roginski (1957), 1 Wis.2d 345, 84 N.W.2d 84; the purpose thereof is to increase, rather than restrict, coverage, Groth v. Farmers Mut. Automobile Ins. Co. (1963), 21 Wis.2d 655, 124 N.W.2d 606; and, this court is committed to a broad or liberal construction of 'permission' as used in the omnibus clauses, required to be included in automobile liability policies. Sec. 204.30(3), Stats. Krebsbach v. Miller (1963), 22 Wis.2d 171, 125 N.W.2d 408.' ⁹

It is in light of this policy that this court will determine whether the findings of the trial court were against the great weight and clear preponderance of the evidence, ¹⁰ and this, whether this court in reviewing might find credible evidence supporting a contrary finding. ¹¹

At the trial the following evidence was adduced:

Mr. Peterson was employed as a seaman on the Great Lakes and was at home during the winter months. During the winter of 1968--1969 he undertook teaching his son to drive. He testified he had allowed his son to drive while he himself was in the car, on country roads seven or eight times, and had allowed him to drive the car in and out of the garage and on the driveway some 50 times. He also testified, however, that he had no knowledge of Gary's ever operating the car alone, except in the driveway, that he had told Gary never to drive unless accompanied by him, and that his first knowledge that Gary ever drove the car alone was after the accident. He stated he did not reprimand Gary at the time of the accident, but that he did do so a few days later.

He further testified that keys for the car were often left on the table or buffet in the dining room; that Mrs. Peterson and the two daughters frequently drove the cars, although the girls were required to obtain permission before doing so.

Mrs. Peterson testified that she had no knowledge that Gary was receiving driving lessons from her husband or that he ever drove the car alone. She further testified that she had never warned Gary against driving the cars since she assumed he wouldn't because of his age. She also stated that neither she nor her husband reprimanded Gary at the time of the accident because he was 'shook up,' but that he was reprimanded later.

Gary testified that, in addition to those times he drove with his father, and in the driveway of his home, he also drove the Corvair alone once or twice and had driven the Chrysler alone three or four times, all prior to the accident. He testified that his mother was unaware that he drove either of the cars even in the driveway and that on those occasions when he drove the cars alone on short trips in town he had waited until his mother was away to do so; that his father was also never home when he did so, and that he had never told his father of his solo drives since his father had specifically instructed him not to drive alone. He stated that on the day of the accident, when he took the keys from the buffet in the dining room, his mother was upstairs sleeping, his father was away from the house, his married sister was not at home nor in a position to see him, and that he did so knowing it was against his father's instructions.

Three witnesses testified they had seen Gary driving the car alone on certain occasions prior to the accident. One testified he saw the boy driving on the day of the accident.

Viewing this evidence in the light most favorable to the trial court's findings we are satisfied that those findings are not against the great weight and clear preponderance of the evidence.

True, most of the evidence supporting those findings which back up the trial court's conclusion of permission was circumstantial, not direct, but is sufficient nevertheless.

There is much evidence of prior use of the automobile by Gary, alone. Gary and his father both admitted that the boy had operated the car in the driveway of the family home. The father admitted it might have been as many as 50 times. This, standing along, does not establish permission. Permission may be limited ¹² and we need to look further at the record to establish permission to operate the car beyond permission to drive in the driveway.

Three persons testified that they had seen Gary driving the Chrysler alone (on Marinette streets) on several occasions prior to the accident. One saw him doing so on the very day of the accident. Gary admitted driving both the Chrysler and Corvair alone on several occasions. This is evidence tending to show permissive use. In Christiansen v. Aetna Casualty & Surety Co. ¹³ the permittee, who resided with his uncle, had previously driven his uncle's car with permission. The uncle then, for some reason, forbade further use of the car, even dismantling the car when he went away on a trip. He reassembled it on his return but testified he again expressly forbade its use by his nephew. Several witnesses testified to seeing the boy driving the car as frequently as once or twice a week, during the period he was forbidden to use it. As to the value of the testimony of these witnesses, the court stated:

'* * * This testimony was admissible as establishing custom or usage in the nature of general consent.' ¹⁴

'* * * Conceding that these circumstances justify the inference of consent, the positive testimony to establish a contrary conclusion cannot destroy the probative force of such circumstances. Such evidence might overcome them, might outweigh them, but it cannot take them out of the case. No matter what evidence is placed on the other side of the scales, this evidence remains, * * *' ¹⁵

There is evidence here that the use of the cars by Gary alone extended at least to streets of Marinette. But use is not enough all alone to establish permission. Some knowledge on the part of Mr. Peterson, or any adult member of his household, is required. The permission, even if implied, requires some awareness, since permission arises from the 'acts, words, or conduct of the permitter.' ¹⁶ '* * * Mere presumption that permission had been given or would be given if asked is not enough.' ¹⁷ This 'knowledge' or awareness of the conduct may be inferred, as here, from the circumstances surrounding it.

In addition to the circumstances surrounding Gary's use of the Peterson automobile, the trial court's determination of permission must be examined in view of the fact that there was here a close blood relationship between the father-insured and the son-permittee. Courts have often placed considerable emphasis on relationship. ¹⁸ The California courts have stated:

'Where the issue of implied permissive use is involved, the general relationship existing between the owner and the operator is of paramount importance.' ¹⁹

And the South Carolina court has stated:

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