Employers Mut. Cas. Co. v. Hart
| Decision Date | 06 January 1967 |
| Docket Number | No. 41274,41274 |
| Citation | 422 P.2d 422 |
| Parties | EMPLOYERS MUTUAL CASUALTY COMPANY, a Corporation, Plaintiff in Error, v. W. D. HART, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Where the owner of an auto wrecked in a collision, while being driven by the insured's son, accompanied by the owner's daughter, obtained a judgment in damages against the son for the destruction of the auto, and thereafter garnisheed the insurer to satisfy said judgment, the court found and/or concluded that, at the time of the collision, the auto was being driven with the daughter's express permission and the owner garnisher's implied permission; Evidence examined and Held: Said findings and/or conclusions, and the judgment for the garnisher, were neither clearly against the weight of the evidence, nor contrary to law.
Appeal from the District Court of Garvin County; Joe D. Shumate, Judge.
After obtaining judgment for damages against its minor driver, the owner of an auto wrecked in a collision with a tree, garnisheed the insurance company that had issued a 'Family Automobile Policy' to the minor's father. After judgment for garnisher, and the overruling of the garnishee's motion for a new trial, the latter appealed. Affirmed.
Rinehart & Morrison, Oklahoma City, for plaintiff in error.
C. H. Bowie, Pauls Valley, for defendant in error.
The ultimate issue in this appeal is whether a so-called 'Family Automobile (insurance) Policy' issued by plaintiff in error to one J. M. Randol covered the liability of Randol's son, Kenneth, for a loss which the defendant in error, W. D. Hart, sustained in damages to his Corvair automobile from said auto's collision with a tree, which occurred while Kenneth, accompanied by Hart's daughter, Charlotte, was driving it.
Kenneth's liability for negligently driving and 'wrecking' the automobile was established by a judgment in the amount of $2034.00, entered against him in Hart's favor during March, 1963, in the lower court's Cause No. 18958, styled 'W. D. Hart, plaintiff vs. Kenneth Randol, a minor.' After an execution issued on said judgment was returned unsatisfied, Hart sought to compel payment of the judgment under Randol's above-mentioned 'Family * * *' policy, by garnisheeing plaintiff in error, hereinafter referred to as 'garnishee', in the same styled and numbered cause.
In the answers to the interrogatories the garnishee was required to file in the case, it did not categorically deny that the policy it had issued to Mr. J. M. Randol was in force and effect on the date his son Kenneth Wrecked Hart's auto, but it represented Hart as saying that said vehicle was then being operated without his consent; and, among other representations, claimed that, even if Kenneth was driving the car with said owner's consent, it was not liable for the car's destruction under its policy, which was attached to its answers to the interrogatories.
Hart, hereinafter referred to as 'garnisher', thereafter elected to take issue with certain of the garnishee's answers to the interrogatories; and, after a trial of the issues by the court, and requests by both the garnisher and garnishee for certain findings of fact and conclusions of law, the court, after having taken the case under advisement, entered judgment for the garnisher, in accord with his own findings of fact and conclusions of law, to which more detailed reference will hereinafter be made. After the overruling of the garnishee's motion for a new trial, it perfected the present appeal.
The garnishee's arguments for reversal involve questions as to the proper application of the subject insurance policy's provisions as to its coverage of 'non-owned' automobiles and/or property. The pertinent provisions are as follows:
'EMPLOYERS MUTUAL
Casualty Company.
(* * * HEREIN CALLED THE COMPANY)
'Agrees with the insured, named in the declarations made a part hereof in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to all of the terms of this policy:
'COVERAGE B--Property Damage Liability
'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
'A. * * *
'B. Injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage';
'PERSONS INSURED
The following are insureds under Part I:
Provided the actual use thereof is with the permission of the owner;
'EXCLUSIONS
This policy does not apply under Part I:
(i) to injury to or destruction of
(1) * * * (2) property * * * In charge of the insured other than a residence or private garage.
'PART III--PHYSICAL DAMAGE
'COVERAGE E--COLLISION
'To pay for loss caused by collision to * * * A non-owned automobile but only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable hereto.
'DEFINITIONS
'insured' means (a)
(b) With respect to a non-owned automobile, the named insured and Any relative provided the actual use thereof is with the permission of the owner;
'non-owned automobile' means a private passenger automobile * * * not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile, While said automobile * * * is in the possession or custody of the insured or Is being operated by him;
* * *.' (Emphasis added)
Among other findings of fact and conclusions of law requested by the garnishee at the trial, were its requested finding '1' and conclusion '4' which, in substance, were respectively that Kenneth Randol was the 'operator' of the Hart car at the time of the accident, and that the above quoted paragraph '(1)' of the policy' 'EXCLUSIONS' under its 'Part I' negates any obligation by the garnishee to the garnisher.
In its own findings of fact and conclusions of law, the trial court not only found that Kenneth Randol was the Hart car's 'operator', but, among other things, specifically found that, on the date of the accident, the car was in Charlotte Hart's 'possession', and that she had her father garnisher's permission to operate it, and had given Kenneth permission to drive it. On the basis of such findings, the court concluded that Kenneth was driving the car with Charlotte's express consent and her father's implied consent; but the court also concluded, among other things, that 'under the terms of the policy in question' said father garnisher 'is not excluded from recovering from the garnishee defendant for damages to his automobile incurred as a direct result of the actions of Kenneth Randol.'
Garnishee's arguments are advanced under two propositions, as follows:
'I. Under the liability provisions of the policy, there is excluded 'property rented to or in charge of the insured other than a residence or private garage'.'
'II. Under the 'collision' provisions of the policy, the company agrees to pay loss to a non-owned automobile 'provided the actual use thereof is with the permission of the owner'.'
The garnishee's arguments under these two propositions leave much to be desired in enhancing its cause, because they place it in contradictory and conflicting positions. For example, under 'II', above, its counsel say that if said proposition is applicable, the trial court erred in his finding that the use of the Corvair was with its owner's permission. But Hart's permission of Kenneth Randol's use of said automobile was necessary before it could be considered to be 'in' his 'charge', within the meaning of that expression as used in the subject policy's above quoted PART I, Exclusion (i), referred to in garnishee's Proposition 'I'. This is demonstrated in Klock v. Allstate Insurance Co., 34 Misc.2d 990, 230 N.Y.S.2d 555, 558, where the court said:
'An examination of Webster's Third New International Dictionary (1961) lends support to the definitions which have been uniformly adopted throughout other jurisdictions. 'In the charge or in one's charge' is defined as being 'into or under the control or custody'; 'custody' is defined as 'power or authority to guide or manage' and 'custody' is 'the act or duty of guarding and preserving (as by a duly authorized person or agency'. In none of this language is there any indication that mere physical possession constitutes being 'in charge of' an article or person; the words 'power', 'authority' and 'duty' all connote a degree of responsibility or right, Which is lacking in one who merely appropriates a vehicle to his own use without the consent or permission of the true owner.
* * *.' (Emphasis added)
Thus, if it were true (as garnishee contends) that the trial court's finding that Kenneth Randol was driving the Corvair with Mr. Hart's permission, was not sufficiently supported by the evidence, then Kenneth could not have been 'in charge' of that car, so as to relieve garnishee of liability under the policy's PART I, COVERAGE B or 'Property Damage Liability' portion. On the other hand, if the court's said finding is correct, then, according to MacDonald v. Hardware Mutual Cas. Co., 105 N.H. 458, 202 A.2d 489, the garnishee is not liable under that portion, or 'Coverage', of Randol's said policy.
In further argument, under its Proposition 'II' garnishee's counsel make reference to a deposition given before the trial by Mr. Hart that they were permitted to introduce in evidence and with which, they attempted to impeach testimony he gave on the witness stand. In their brief, counsel say it 'is impossible to read' the deposition '* * * and believe that he in fact authorized his daughter to permit anyone except a member of his family to use the car.' The deposition was admissible, if at all,...
To continue reading
Request your trial
-
Civil Service Emp. Ins. Co. v. Roberts
...years experience and had herself previously driven one of the owner's personal cars to the owner's knowledge. In Employers Mutual Casualty Co. v. Hart, 422 P.2d 422 (Okl.1967), there was direct testimony by the owner of permission and the appellate decision holds that the trial court could ......
-
American Emp. Ins. Co. v. McGeehee
...The question of a garnishee's right to trial by jury has never been directly resolved in Oklahoma, Employers Mutual Casualty Co. v. Hart, Okl., 422 P.2d 422, 425 (1967). There is some authority for either view; Jarecki Mfg. Co. v. Fleming, 170 Okl. 70, 38 P.2d 925, 927 and Moral Ins. Co. v.......