Foley v. Tennessee Odin Ins. Co.

• Decision Date: 14 December 1951
• Citation: Foley v. Tennessee Odin Ins. Co., 193 Tenn. 206, 245 S.W.2d 202, 29 Beeler 206 (Tenn. 1951)
• Parties: FOLEY et al. v. TENNESSEE ODIN INS. CO. 29 Beeler 206, 193 Tenn. 206, 245 S.W.2d 202
• Court: Tennessee Supreme Court

Page 202

245 S.W.2d 202

FOLEY et al. v. TENNESSEE ODIN INS. CO.

29 Beeler 206, 193 Tenn. 206, 245 S.W.2d 202

Supreme Court of Tennessee.

Dec. 14, 1951.

Goodpasture, Carpenter & Dale, Nashville, for appellants.

Marshall & Blackmon, Nashville, W. P. Puryear, Jr., Gallatin, for appellee.

BURNETT, Justice.

This suit involves the 'additional assured' provision of a public liability policy of insurance on motor vehicles. The Chancellor and the Court of Appeals rendered a decree in favor of Foley et al., and against the petitioning insurance company. Certiorari has been granted and argument heard.

The question now before us resolves itself into whether or not the insurance company is liable under the facts of this case in view of the 'additional assured' provisions of their policy which is: 'The unqualified word 'insured' wherever used in coverage A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.'

The facts out of which this lawsuit arose are briefly, as follows:

Foley recovered a judgment in the Circuit Court of Trousdale County against one David Dies for fifteen hundred ($1500.00) dollars as a result of Dies negligently operating a truck off the highway and into the residence of the plaintiffs. This was a default judgment. Later suit was instituted in the Chancery Court of Davidson County against the insurance company, petitioner here, under a policy of insurance written by the petitioning company covering the vehicle which caused the damage. At the time the damage was caused by this automobile truck being operated by Dies, it was owned by one Dixon. Dixon loaned this vehicle to Dies about 8:30 A.M. on the morning of June 14, 1947, to go to Lebanon to get a nephew out of jail. There was no specification when or how the truck should be returned. Dies went to Lebanon, got his nephew out of jail and returned to Hartsville about 2:00 o'clock that afternoon. Later that afternoon, about an hour later, Dies took the truck and started on a trip with another man to Gallatin and it was on this trip that the accident occurred. Dies was an employee of Dixon's subsequent to the accident and on up until probably after the trial of the Chancery case in this cause. There is nothing in the record to show that Dixon specifically limited this loan to the trip to Lebanon. He did not instruct Dies, as soon as he returned from Lebanon, to return the truck to him. About the time the accident happened Dixon did go to Dies' home looking for the truck, and then as a result of information that he got there he went on over to the point of the accident.

Under this state of facts the insurance company refused to defend the law case and likewise took the position in this Chancery suit that they were not liable because at the time the accident happened Dies had completed the mission for which the truck had been loaned to him and had gone off on an entirely independent mission, and, that therefore under the 'additional assured' clause, above quoted, they were not liable. In support of this position the petitioner relies upon the recent case of Hubbard v. United States Fidelity & Guaranty Co., Tenn.Sup., 240 S.W.2d 245, and other cases. This case under the facts is clearly distinguishable from Hubbard v. United States Fidelity & Guaranty, supra, because in the Hubbard case the use of the car at the time of that accident was specifically forbidden by the owner and assured. The use of the car in the present case, at the time of the accident, was not specifically forbidden by the owner and assured but was through at least the implied permission of the owner to the driver of the car.

The present case comes directly within the rule as laid down by this Court in Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 477, 72 A.L.R. 1368. In that case this Court said: 'It is our opinion that the words, 'providing such use or operation is with the permission of the named assured,' were intended to exclude from the protection of the policy the person who should take the automobile and use it without...