Harrison v. Densmore

• Decision Date: 03 March 1966
• Docket Number: 6 Div. 858
• Citation: 183 So.2d 787,279 Ala. 190
• Parties: D. M. HARRISON v. Will H. DENSMORE et al.
• Court: Alabama Supreme Court

Page 787

183 So.2d 787

279 Ala. 190

D. M. HARRISON v. Will H. DENSMORE et al.

6 Div. 858.

Supreme Court of Alabama.

March 3, 1966.

Spain, Gillon & Young, S. R. Starnes and Ollie L. Blan, Jr., Birmingham, for appellant.

W. J. Sullivan, Jr., and Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellee Liberty Mut. Ins. Co.

GOODWYN, Justice.

This is a declaratory judgment proceeding to determine whether an insurer (Liberty Mutual Insurance Company) is obligated to defend two automobile accident suits brought against the permittee (D. M. Harrison) of a permittee (Mrs. Clifton C. Baker) of the insured garage owner (Vulcan Lincoln-Mercury, Inc.), whose insured automobile, while being driven by Harrison, was involved in said accident. The critical and decisive question presented on this appeal is whether Harrison, at the time of the accident, was operating the car with the garage owner's permission, within the meaning of the so-called omnibus coverage clause of the policy, so as to render Harrison an additional insured under the policy. The policy provides coverage for all the automobiles of the 'insured.' The omnibus clause, in pertinent part, defines 'insured' as follows:

'* * * [T]he unqualified word 'insured' includes the named insured and * * * (2) any person while using an automobile covered by this policy, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission * * *.'

The trial court held that Harrison was not operating the car with the named insured's permission, within the meaning of the omnibus clause, and is not afforded coverage under the policy. We disagree and reverse the decree.

As a prelude to the decree, the trial court made the following findings from the evidence taken orally before the court, viz.:

'* * * That a Mercury automobile was provided for the use of Mr. Clifton C. Baker by his employer, the Vulcan Lincoln Mercury, Inc., that he had the right of the use of said vehicle for his personal use and pleasure; that he took the car home with him in the evenings and used the automobile on occasions of vacations or personal trips. Mr. Baker was the Service Manager for the said Vulcan Lincoln Mercury, Inc.; that said Mercury automobile furnished for his use as aforesaid was also available as a demonstrater or for the use of customers as a substitute car on such occasions as repairs were being made to the customers' cars; that Mrs. Baker customarily operated a Ford Station Wagon which was owned by her and her husband; that on occasions when this Ford Station Wagon was being serviced at the Vulcan Lincoln Mercury garage, her husband, Mr. Clifton Baker, would leave the company car, which on this occasion was a Mercury automobile, with her as a substitute for her own Ford Station Wagon which was being serviced; and that it was on such an occasion as this when the accident occurred involving the Mercury automobile belonging to the Vulcan Lincoln Mercury, Inc.

'The Court further finds the facts to be that Mrs. Baker drove the said Mercury automobile to the home of her sister, Mrs. LeCroy; that on this occasion, Mrs. Baker's brother, the Complainant herein, D. M. Harrison, drove the said Mercury automobile with the consent of Mrs. Baker to deliver the children of both the LeCroys and the Bakers to the movie. It was during this trip that the accident occurred while Mr. Harrison was returning to the LeCroy home.

'The Court is of the considered opinion that the Mercury automobile was on the occasion of the accident being used as a substitute automobile for the Ford Station Wagon owned by Mr. and Mrs. Baker; and that for such reason, no insurance would be afforded the complainant for the use of the automobile on this occasion as an additional insured under the policy of the Respondent, Liberty Mutual Insurance Company, a corporation, covering the operations of the Vulcan Lincoln...