Goodwin v. Home Indem. Co.
| Decision Date | 03 November 1969 |
| Docket Number | No. 52,52 |
| Citation | 255 Md. 364,258 A.2d 220 |
| Parties | John C. GOODWIN v. The HOME INDEMNITY COMPANY. |
| Court | Maryland Court of Appeals |
Jerome A. Dashner, Baltimore (Thomas Paul Raimondi, Baltimore, on the brief), for appellant.
Alva P. Weaver, III, Baltimore, for appellee.
Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.
Appellant John C. Goodwin (Goodwin) recovered a judgment against the estate of Joseph Svoboda (Svoboda) as a result of an accident on March 1, 1963. Svoboda was at that time operating a vehicle owned by Robert J. Gnau & Sons (Gnau & Sons) on which a policy of insurance had been issued by appellee The Home Indemnity Company (Home). Goodwin ordered issuance of a writ of attachment on that judgment. It was laid in the hands of Home. Judge Sodaro, sitting in the Superior Court of Baltimore City, held that the omnibus clause in the policy issued by Home to Gnau & Sons did not cover Svoboda's operation. We shall affirm the action of Judge Sodaro.
On Wednesday, February 27, 1963, Svoboda had used a truck owned by Gnau & Sons to haul some canned goods from a boat to a railroad car. In so doing he broke the hinge on the truck door. The truck and keys were returned to Gnau & Sons on the same date. The Gnau & Sons trucks were normally kept on a lot across the street from the Satyr Hill Restaurant and Tavern. Two days later, on Friday evening, March 1, 1963, Svoboda and Robert J. Gnau (Gnau) had a chance meeting at the Satyr Hill Restaurant and Tavern. Svoboda volunteered to get the truck hinge fixed the following day, Saturday, at Svoboda's expense. Gnau indicated he would be otherwise occupied on Saturday morning. Svoboda then advised him that if Gnau gave Svoboda the key Svoboda would take care of the matter. Gnau says he understood that the truck would be fixed around 8:00 o'clock Saturday morning.
Gnau gave Svoboda the key around 8:00 o'clock Friday evening. He stated positively that he did not authorize use of the truck Friday evening. Gnau said he received a telephone call from Svoboda on Saturday morning between 2:00 A.M. and 3:00 A.M. advising him of the accident and that he had just been 'riding around'. Unfortunately, Svoboda is now deceased.
There was a stipulation filed in the trial court that the relevant portion of the insurance policy read:
'Persons Insured: The named insured and any other person using such automobile with the permission of the named insured, provided his actual operation * * * is within the scope of such permission.'
Judge Sodaro rendered his opinion on January 16, 1969, two days after our opinion in Am. Home Assur. Co. v. Erie Ins., 252 Md. 116, 248 A.2d 887 (1969), was filed, but prior to its publication. In that case we were concerned with an identical omnibus clause. It is clear that under our holding in that case there would be no coverage under the omnibus clause here since on these facts it cannot be said that Svoboda's 'actual operation (was) within the scope of (the) permission (granted)'.
Goodwin urges here, however, that the stipulation entered into as to the provisions of Home's policy was based upon a mistaken understanding. There is filed in this Court...
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