Gulla v. Reynolds

• Decision Date: 22 March 1948
• Citation: 82 Ohio App. 243,81 N.E.2d 406
• Parties: GULLA v. REYNOLDS et al.
• Court: Ohio Court of Appeals

81 N.E.2d 406

82 Ohio App. 243

GULLA v. REYNOLDS et al.

Court of Appeals of Ohio, First District, Hamilton.

March 22, 1948

Syllabus by the Court.

Under an automobile liability policy with omnibus clause covering any driver, 'provided the actual use of the automobile is with the permission of the named insured,' the phrase 'actual use' is construed to be referable to the use being made of the car at the time and place of the accident and if that use be outside the reasonable scope of the permission to use, as shown by all the circumstances coverage will be held not to be extended to the driver.

Ginocchio & Ginocchio, of Cincinnati, for appellant.

Robert G. McIntosh, of Cincinnati, for appellees.

HILDEBRANT Judge.

Plaintiff recovered a judgment against the nonowner driver of a truck based on his negligent operation thereof.

In a supplemental petition filed by virtue of Section 9510-4, General Code, he now claims the owner's liability insurance policy, by the terms of its so-called omnibus clause, extended coverage to the driver of the truck. The defendant company contends that the circumstances of this case fail to bring the driver within the terms of the policy.

The so-called omnibus clause reads: 'The unqualified word 'insured' wherever used in coverages 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 are: On the day of the accident the driver, who was known to the owner, contacted him at his furniture store, seeking casual employment. The owner employed him to make a delivery of furniture and put him in possession of the truck by giving him a note to present at the parking lot a block away where the truck was stationed. He also hired as helper a woman companion of the driver, and together they made the delivery and returned to the store in approximately an hour. The owner paid them and the employment then and there terminated, and there is nothing in the record to show that the driver was to do anything further with the truck. Shortly thereafter, and while still on the premises, and at approximately three p. m., although conflicting testimony fixes the time up to five p. m., the driver bought a small item of furniture and requested permission of the owner to deliver it in the truck to the home of his helper, which was only a little more than a block distant from the store. The owner granted that permission and testified:

'A. * * * he asked if he could deliver the baby bed to his house a block away, and I said he could and deliver the truck to a truck place which was a block from his place and block from my store.

'A. Between two-thirty and three o'clock in the afternoon.

'Q. Did you go to the parking lot to find out if he ever returned the truck? A. No I didn't.

'Q. Do you know if truck ever returned to the parking lot? A. No, it was not returned.

'Q. Did he have any other jobs to do for you that night? A. None.

* * *

* * *

'Q. He asked if he could deliver this bed to Fourteenth and Main? A. Yes.

'Q. As soon as he did that you instructed him to take your truck to the parking lot on Walnut street? A. That's right.

* * *

* * *

'Q. Did he make delivery? A. Yes, made delivery in perhaps three-quarters of an hour; brought the truck back to the store and made purchase of the baby bed and asked if he could use the truck to take it to the house and then he would take it to the parking lot.

* * *

* * *

'Q. Then you gave him permission to use the truck? A. Yes; he could have carried it but he asked if he could use the truck and I said he could.

'Mr. McIntosh: From there he was to take the truck to the lot? A. Yes.

'Q. That was the extent of your promise as to using the truck? A. Absolutely.

'Q. You gave him no permission to ride around in it or for any other purpose? A. No.

'Mr. Ginocchio: Mr. Straus, did you issue positive orders to him, telling him--don't do this or that; or--don't drive here or drive there? A. Well, as I say, my gasoline allotment was very small; I certainly would have objected. I told him to take the truck to the lot after delivering the baby bed.

'Q. No, I guess you didn't understand my question; Did you expressly tell him--don't use the truck for any other purpose but delivering that? A. My express instructions were to take the truck to the parking lot after delivering the baby bed.

'Q. State what you told him with reference to taking the truck. A. So far as I know, I did not tell him he could not take that truck on a pleasure trip, but it certainly was understood.

'The Court: That was when you gave him instructions to take the truck from your store with the baby bed? A. Yes I did.

'The Court: Did that control you in your idea of letting him use it? A. Yes.

'The Court: Because it was a very short distance? A. That is right.'

The record further shows that gasoline rationing was in effect at the time and the owner accordingly was concerned with limiting the use of his truck. The accident happened shortly after eight p. m., that evening.

The trial court, without the intervention of a jury, found as a fact that the actual use of the truck by the driver in this case at the time of the accident was not with permission of the named assured; indeed, that its use was in violation of Section 12619, General Code, and entered judgment for the defendant.

There are many decisions construing and applying permissive use provisions in liability insurance policies. These authorities divide into generally two...