Hanover Ins. Co. v. Abchal
| Decision Date | 18 February 1964 |
| Docket Number | No. 31506,31506 |
| Citation | 375 S.W.2d 605 |
| Parties | The HANOVER INSURANCE COMPANY, a Corporation, (Plaintiff) Appellant, v. George F. ABCHAL, Jr., and Sylvia Broeckelmann, (Defendants) Respondents. |
| Court | Missouri Court of Appeals |
Evans & Dixon, John C. Shepherd and Paul V. Gilbert, St. Louis, for appellant.
James F. Koester, St. Louis, for respondent Sylvia Broeckelmann.
This is an action for a declaratory judgment filed by the Hanover Insurance Company, a Corporation, against the respondents Sylvia Broeckelmann and George F. Abchal, Jr. The controversy arises out of the question of whether its automobile policy of liability insurance, No. ACF 41031, issued to one John E. Warden, covering a 1956 Mercedes Benz automobile, No. 300SL, M#5500784, afforded coverage to the respondent, George F. Abchal, Jr., while driving said automobile on a social date with respondent Sylvia Broeckelmann who sustained personal injuries resulting from an accident while they were so engaged.
On February 15, 1959, respondent Sylvia Broeckelmann filed a lawsuit, No. 229,720 in the Circuit Court of the County of St. Louis, Missouri, against respondent George F. Abchal, Jr., for damages. On October 2, 1959, appellant Hanover Insurance Company filed its petition for declaratory judgment against respondents George F. Abchal, Jr., and Sylvia Broeckelmann in the same court, being cause No. 231,638. Later, respondent Broeckelmann filed her petition in the same court against appellant Hanover Insurance Company, et al., for a declaratory judgment, being cause No. 239,935. These two suits were consolidated on November 3, 1961, on the motion of respondent Broeckelmann. On January 23, 1963, respondent Broeckelmann obtained judgment in Cause No. 229,720 against respondent George F. Abchal, Jr., in the sum of $4500, which amount she seeks to collect from the appellant, Hanover Insurance Company, a Corporation, on the theory that respondent Abchal was an additional insured under the policy issued by said company to John E. Warden. The lower court entered its judgment in favor of respondent Broeckelmann declaring that respondent George F. Abchal, Jr., was an additional insured under said policy and entitled to its protection. The appellant brings this appeal.
The pertinent provisions of said policy involved here are as follows:
Part I Liability, Persons Insured.
'The following are insured under Part I: (a) With respect to the owned automobile * * * (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured.'
It was admitted by stipulation that respondent Abchal, Jr., was not a resident of St. Louis County, Missouri, at the time of the trial and that he and respondent Broeckelmann were out on a social call and not on any business for Spooner Motor Company at the time of the accident aforesaid. Respondent Abchal was not present and did not testify at the trial. His deposition had been previously taken but was not admitted in evidence because it was not signed by him. There were only two witnesses who testified. They were John E. Warden, the owner of the automobile which was insured by appellant, and the only witness testifying who knew the terms upon which said automobile was delivered to respondent Abchal, Jr., and Robert G. Spooner, President of Spooner Motor Company, who knew nothing of the understanding between Warden and respondent Abchal, Jr., and whose testimony related chiefly to events occurring after the delivery of said automobile by Warden to respondent Abchal and as to how he ran his business. The question therefore is, did the respondents sustain their burden of proof and prove that respondent Abchal, Jr., on the date of the accident, was using said automobile with the express or implied permission of the insured, John E. Warden?
Witness Warden testified that he was fifty-eight years old and lived at 8000 South Drive, Richmond Heights, Missouri. He was self-employed in the transportation business. Between December, 1958, and February, 1959, he was the owner of a 1956 Benz automobile which he turned over to Spooner Motors for sale. The respondent Abchal had informed him that he was sales manager for Spooner Motors. Warden was going to Panama on his vacation on January 1, 1959. He had delivered the car to Continental Motors to install a new gear box and had instructed them, after the repairs were made, to deliver the automobile to Spooner Motors for sale. He had previously talked with respondent Abchal, who said he was sales manager for Spooner Motors, and it was agreed that said automobile would be turned over to Spooner Motors for sale at the price of $6500. He had previously placed a Corvette with Spooner for sale, but it was stolen before sale. He stated that he had talked to Mr. Spooner as to whether his insurance would cover the Mercedes Benz but Spooner denied the conversation. As Warden directed, the Mercedes Benz was delivered to respondent Abchal, Jr. Warden stated that he never gave respondent Abchal permission to use the Mercedes Benz for his own personal use. After the accident, the Mercedes Benz was again placed with Spooner for sale but soon picked up because Spooner was having financial difficulties.
On cross-examination, witness Warden testified that he, his son and respondent Abchal were on friendly terms. Respondent Abchal and his son went out together socially and respondent Abchal was a frequent visitor in his home. Warden's dealing with Spooner Motors about the sale of the car was with respondent Abchal, the general sales manager, except as to conversation he had with Mr. Spooner about the insurance. Nothing was said to Spooner about him picking up the car. Warden told Continental Motors, when the car was ready, to call respondent Abchal, Jr., the general manager of Spooner Motors. Continental Motors had the car keys and he arranged with respondent Abchal to pick up the car and did not restrict his use of it. He was not aware that salesmen used cars left for sale on their own personal business. He had since become aware of such facts and if such was normal procedure, it was agreeable with him. Respondent Abchal, Jr., had never used the Mercedes Benz or any other automobile belonging to him with his express or implied consent. He didn't know whether his son ever let him drive the car or not. The son is now deceased. Continental Motors was instructed to remove the license plates from the Mercedes Benz. Whether it was done or not, he did not know. Warden made a claim for collision loss against the appellant under the policy in question and he paid the $50.00 deductible which was not refunded. If it was the policy of Spooner Motors to let their salesmen use cars for their own personal business, he had no objection to their policy, but he would not have OK'd it. He did not tell respondent Abchal he could not use said automobile personally.
On redirect, Warden testified that he did not know what the normal operating procedures of Spooner Motors were and that the only thing he was interested in was in selling his car.
Witness Robert G. Spooner testified that he operated the Spooner Motor Company and that during 1959 the respondent Abchal was in his employ as a salesman. He was friend of John Warden and his son and respondent Abchal, Jr., and had been out socially with them. He had no conversation with Warden about insurance on the Mercedes Benz but did have about Warden's Corvette. Spooner knew nothing about respondent Abchal taking possession of Warden's Mercedes Benz. Respondent Abchal, Jr., picked up said automobile from the Continental Motor Company and he saw him operating the car. Respondent Abchal, Jr., tried to finance said automobile. Spooner had nothing to do with taking possession of said automobile and it was not for sale by Spooner Motor Company. All consignments had to be approved by Spooner. After the accident, the Mercedes Benz was taken by him on consignment and displayed and nobody could use it for their own personal use. Warden did not give him the title before he left nor did he ever make any claim against Spooner Motors for damages.
On cross-examination, Spooner testified that no one drove the car except him after the accident and that it was not normal operating procedure to allow salesmen to use consigned cars...
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