Glens Falls Indemnity Co. v. Zurn, 5996.
| Decision Date | 02 March 1937 |
| Docket Number | No. 5996.,5996. |
| Citation | 87 F.2d 988 |
| Parties | GLENS FALLS INDEMNITY CO. v. ZURN et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leon B. Lamfrom and A. J. Engelhard, both of Milwaukee, Wis., for appellant.
William A. Hayes, of Milwaukee, Wis., and Albert H. Krugmeier, of Appleton, Wis., for appellees.
Before SPARKS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
This case is only a drab epilogue to one of the tragic annals of modern traffic. In a trial without a jury the District Court entered judgment in behalf of appellees against appellant upon an insurance contract issued by it to John P. Marsh covering the operation of his automobile. Appellees were the owners of judgments against one Whatley, obtained against him because of his negligence in driving the automobile on September 1, 1931. At that time William Marsh, son of the assured, and his two companions, Sheldon White and Seaborn Whatley, were driving from Chicago to the White summer home in northern Wisconsin. A collision between the car in which they were riding and another caused the deaths and other injuries for which the judgments were entered. Whatley was at the wheel at the time.
The pertinent provisions of the policy are as follows:
The District Court found that young Marsh and the other boys obtained from the assured permission to take and use the touring car; that they also obtained such permission from the assured's wife, an adult member of the assured's household; that Whatley was legally using the car, with the permission of the assured, the assured's wife and the son, William Marsh, an adult member of the assured's household; that William had been vested with a broad discretion as to the control, use, and management of the car and was, within the meaning of the words of the policy, an adult. Appellant contends that the evidence was insufficient to sustain the findings.
William Marsh was eighteen years of age. He and Sheldon White had been schoolmates; Whatley was a friend of White and had recently become acquainted and friendly with young Marsh. The three boys had planned a trip from Highland Park, just north of Chicago, to the summer home of the White family in northern Wisconsin. They had discussed getting the car of the father of one of them; finally young Marsh approached his father. He had previously driven the car; his father had confidence in him, considered him a good driver and trusted to his judgment, and testified that the car was taken with his knowledge, consent, and permission. Mr. Marsh treated William as an adult member of the household, "considered him mature for his age." William requested the use of the car two or three days before the boys started. He had frequently driven it with others as companions, at least twice a month. The father usually did not know who his son's companions were, but permitted the son to go with whom and where he pleased. The father knew that three boys were going but he did not know their schedule or their itinerary. Mrs. Marsh and Mrs. White had discussed the boys' plans and understood that the three were going north together.
The boys pooled their expenses and agreed to alternate in driving. The enterprise was joint; all three sat in the front seat. The father testified that he expected the son...
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