Dickinson v. Maryland Casualty Co.

Decision Date28 July 1924
Citation101 Conn. 369,125 A. 866
CourtConnecticut Supreme Court
PartiesDICKINSON v. MARYLAND CASUALTY CO.

Case Reserved from Superior Court, New Haven County; Allyn L Brown and George E. Hinman, Judges.

Action by George J. Dickinson, administrator, against the Maryland Casualty Company. Reserved upon a finding of facts for advice of Supreme Court of Errors. Question answered.

Beach and Kellogg, JJ., dissenting.

Where automobile liability insurance policy extended indemnity to third parties driving with assured's permission, and permitted suit against insurer by persons injured by operation of the car, held, that deviations by one permitted to drive home to change his clothes did not destroy insurer's liability for death of driver's guest.

Walter J. Walsh, of New Haven, for plaintiff.

DeLancey S. Pelgrift, of Hartford, and Philip Pond, of New Haven, for defendant.

CURTIS, J.

In April, 1921, Donato Maisano, of New Haven, was the owner of a Westcott automobile, and procured from the defendant company a policy of insurance containing the following provisions covering the persons, firms, or corporations insured under the policy:

Clause I: " To insure said named assured, in accordance with the provisions of said general agreements, as respects the automobile owned or operated by the named assured and listed in said general agreements."

Clause II: " The insurance provided by this policy is so extended as to be available, in the same manner and under the same conditions as it is available to the named assured, to any person or persons while riding in or legally operating the automobile described in the general agreements, 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: Provided, further, insurance payable hereunder shall be applied first to the protection of the named assured, and the remainder, if any, to the protection of other persons entitled to insurance under the provisions and conditions of this clause, as the named assured shall in writing direct."

Donato Maisano, the named assured, and other assured under clause II above, are insured by the policy as to the use of a Westcott car as follows:

" (A) Against loss from liability imposed by law upon the Assured for damages on account of bodily injuries including death resulting therefrom, accidentally suffered or alleged to have been suffered by any person or persons, caused by an automobile owned or operated by the assured, and described in the schedule hereof, and for the purposes named therein, * * * within the confines of the United States and Canada, provided such bodily injuries or death are suffered as the result of accident occurring within the term of the policy as in [clause II] hereof set out."

The policy also contained the following agreements by the defendant company:

Clause III: " In addition to the limit set forth in the general agreements, the company will, at its own cost (court costs and all interest accruing after entry of judgment being considered a part hereof regardless of the limit of liability set forth in the general agreements), investigate all accidents covered thereunder, and defend all suits thereon even if groundless, of which notices are given to it as hereinafter required, unless the company shall elect to settle the claim or suit."

Clause IV: " The insolvency or bankruptcy of the assured shall not release the company from the payment of damages for injuries or death sustained or loss occasioned during the life of the policy; and the prepayment of any judgment that may be recovered against the assured upon any claim covered by the policy is not a condition precedent to any right of action against the company upon the policy, but the company is bound to the extent of its liability under the policy to pay and satisfy any such judgment and to protect the assured against the levy of any execution issued upon the same; and an action may be maintained upon any judgment by the injured person, his or her heirs or personal representatives, as the case may be, to enforce the liability of the company as in the policy set forth and limited."

Donato Maisano duly performed all the terms of the policy to be performed by him.

One Riccitelli was an employee of a company in which Donato Maisano was interested, and was a duly licensed operator of motor vehicles in Connecticut. Louis Maisano was a brother of Donato, and was an adult member of Donato's household and living at his home, in Wooster Place, New Haven, and Louis was not a chauffeur or domestic servant of Donato. Donato Maisano kept this insured Westcott car in a garage in the rear of his home. When Riccitelli finished his work on October 8, 1921, shortly after 6 o'clock, he met Louis Maisano at the garage in the rear of Donato's house, and asked him if he could borrow the Westcott car of Donato Maisano to go home and change his clothes. Louis replied " All right, and hurry back." Thereupon Riccitelli took the Westcott car and drove away with it from the garage with the knowledge and permission of Louis Maisano. Riccitelli at this time lived in the southern portion of the city of New Haven, and about one mile southerly from the corner of Congress avenue and Commerce street. He drove from Wooster place to the Commerce street junction with Congress avenue, where he stopped the car at a saloon formerly conducted by Flynn Bros. for the purpose of getting a drink. Up to this point the route he took, although not the most direct route to reach his home, was one of several routes that he could reasonably have taken. He met at Flynn Bros. three men, Samuel Dickinson, the plaintiff's intestate, Sugrue, and Walpole. He spent about 15 minutes in Flynn Bros. in the company of these men, conversing with them. Samuel Dickinson lived on Rosette street at this time, and his home was in the same general direction as Riccitelli's home.

While there, Dickinson asked Riccitelli if he was going home, and Riccitelli replied, " Yes." Thereupon Dickinson replied, " I'll come with you," and Riccitelli assented. While they were talking, and before starting, it was further planned by the two men to first take Sugrue half way home, up to the junction of Dixwell avenue and Munson street, and then take Dickinson home. Thereupon the four men entered the automobile, and Riccitelli drove the car to the junction formed by Dixwell avenue, Shelton avenue, Munson and Orchard streets, a distance of more than a mile in a northerly direction from the corner of Congress avenue and Commerce street, and in the northwestern part of the city of New Haven. He stopped there at a place where all the men got out and had some drinks; it did not appear what they drank. In driving in this direction Riccitelli was driving in a direction away from his home. From there Riccitelli drove the car through Munson street over to Ashmun street, where he stopped at a place not far from the Winchester Repeating Arms Company plant. After they left this place, Riccitelli started to return, driving down Ashmun street; Sugrue having left the car. Walpole and Dickinson sat in the back seat of the car. Riccitelli then intended to drive down Ashmun street to Grove street, thence to Church street, where he expected to look at the City Hall clock to see if he still had time to go to his home, and, in the event he did not, he intended to take the car back to the Maisano garage at No. 11 Wooster Place at about 7:30 o'clock. On his way back, as he was turning the car from Ashmun street into Grove street the car skidded against a tree, due solely to his negligence in driving it, and Dickinson was mortally wounded as a result thereof.

The administrator of the estate of Samuel Dickinson brought an action against Riccitelli in the Superior Court in New Haven County, claiming damages against him for his negligence causing the death of Dickinson, and in the action tried to a jury a judgment was rendered in favor of the administrator to recover of Riccitelli the sum of $4,000 damages and his costs taxed at $64.86.

There are no claims outstanding against Donato Maisano against which he is entitled to protection under the terms of the policy, nor does he make any claim for protection of any kind under the terms of the policy, nor has he any direct financial interest in the above action other than to see justice done between the parties.

The judgment has not been paid, and the defendant refuses to pay it, although requested to. The question upon which our advice is desired is the following:

" Whether the permission given by Louis Maisano was such permission as to bring Riccitelli within the terms and meaning of the provisions of the policy, and especially the provisions of clause II, commonly referred to and called the ‘ omnibus coverage clause,’ at the time the injuries were received by Dickinson."

This reservation presents for our advice the inquiry whether, under the policy of insurance and the facts found, the permission given by Louis Maisano to Riccitelli to use the insured car " was such permission as to bring Riccitelli within the terms and meaning of the provisions of the policy, and especially the provisions of clause II, commonly referred to and called the ‘ omnibus coverage clause,’ at the time the injuries were received by Dickinson."

The policy insured the " named assured," Donato Maisano, who owned the Westcott car covered by the policy and who...

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