Hartford Acc. & Indem. Co. v. Peach, 3853
| Decision Date | 21 January 1952 |
| Docket Number | No. 3853,3853 |
| Parties | HARTFORD ACCIDENT & INDEMNITY COMPANY v. JAMES H. PEACH. Record |
| Court | Virginia Supreme Court |
Rixey & Rixey, for the plaintiff in error.
A. A. Bangel and James G. Martin & Sons, for the defendant in error.
On April 19, 1947, James H. Peach was injured in a collision between a car driven by him and another owned by John M. Fleming and operated by G. M. Walker. Subsequently Peach recovered a judgment in the Circuit Court of Norfolk County against Walker in the sum of $15,000 for damages for his injuries. Execution on the judgment being unavailing, Peach instituted the present suit against Hartford Accident & Indemnity Company, alleging that by virtue of a policy which it had issued covering the automobile driven by Walker, the insurance company was liable in the amount of $5,000, the stated limit in the policy, on account of the judgment which he (Peach) had recovered against Walker. This action resulted in a verdict and judgment in favor of Peach against the insurance company and the matter is before us on a writ of error granted the insurance company.
There is no dispute as to the material facts. On January 29, 1947, the Hartford Accident & Indemnity Company, through its agent at Wilkes-Barre, Pennsylvania, issued its automobile liability insurance policy insuring a 1934 Dodge automobile which was owned by John M. Fleming and registered in Pennsylvania in his name, covering 'bodily injury liability' to a single person in the sum of $5,000. The policy stated the 'Name of Insured' to be Mrs. Fleming rather than her husband. This was upon the advice of the local agent of the insurance company who suggested that it would enable her to take care of any insurance matters which might arise while her husband, who was in the naval service, was at sea.
The policy contained the following extended or omnibus coverage clause which is the basis of the present action:
'Definition of 'Insured.'
About the middle of February the Flemings moved their residence from Pennsylvania to Virginia, residing first in Portsmouth and later in Norfolk County in a suburb of the city of Norfolk. Fleming used the automobile principally as a means of transportation between his residence and his ship, the U.S.S. Freemont on which he was chief quartermaster, and which was stationed at the Naval Operating Base at Norfolk.
Walker was likewise attached to the U.S.S. Freemont with the rank of chief motor machinist mate, and he and Fleming had their meals together in the 'Chiefs' Quarters' on the ship. A machinist under Walker had previously done some work on the Fleming car which had proven unsatisfactory, in that the valves were sticking. Fleming told Walker of his dissatisfaction with this repair work and Walker offered 'to fix the car.'
Fleming spoke to his wife about Walker's offer to repair the car. She did not approve of the plan, preferring that the car be taken to a commercial mechanic. However, this objection on her part was not pressed and the arrangement whereby Walker was to do the work was finally entered into.
Walker did not appear at the trial of either suit and the evidence as to the arrangement between him and Fleming comes only from the testimony of the latter.
On Saturday, April 19, 1947, about noon, while the two men were on board their ship which was tied up at a pier at the Naval Operating Base, the matter was discussed again. Since Walker was 'flat broke' and was not going on leave for the week end, he offered to repair the car. Fleming's duties required him to be on the ship over the week end and it suited his convenience that the work be done then. Accordingly, Fleming gave Walker the keys to the car and $10 with which to buy valves should they be needed.
At the time the car was turned over to Walker it was on a parking lot near the dock within the Naval Operating Base. There was no express understanding between the men as to when the work was to be done, or where the valves, if needed, were to be obtained by Walker. As Fleming said,
Fleming testified that Walker did not ask him for 'permission to use' the car for his own purposes, nor did he (Fleming) grant such permission. 'Nothing was said one way or the other about [his] driving it.'
When asked whether Walker 'had to take the car out and drive it around to determine whether or not it needed any valves,' Fleming's reply was, 'No sir, I don't think he did. ' 'I don't know.'
About 11 o'clock p.m. on the day on which Walker received the keys to the car the collision occurred which is the basis of this suit. At the time Walker was driving the Fleming car westwardly along Taussig boulevard, a city street outside the Naval Operating Base but adjacent thereto. The undisputed evidence is that he was then under the influence of intoxicating liquor. The purpose of the trip on which Walker was then bound is not disclosed in the evidence, nor is it shown when the car was driven from the government reservation or where Walker had been. It developed, however, that he had done no work on the car, had not purchased the valves, and subsequently returned to Fleming the $10 which the latter had given him.
When the accident was first reported to the insurance company it denied coverage for Walker under the policy and declined to defend the suit which Peach brought against him.
There was no personal service of process upon Walker, nor did he appear or file any pleadings in the original suit. Substituted service was had on him by delivering a copy of the notice of motion to the Director of Motor Vehicles, as his statutory agent, under section 23 of the Motor Vehicle Code of Virginia, Acts of 1938, ch. 26, p. 28. Michie's Code of 1942, § 2154(70)(i). 1
In our view of the matter the only question we need consider is whether at the time of the accident the 'actual use of the automobile' by Walker was 'with the permission of the named insured' within the meaning of the omnibus coverage clause of the policy.
It is universally held that the 'permission of the named insured,' within the meaning of such a clause, need not be express but may be implied. 5 Am. Jur., Automobiles, § 537, p. 807; 45 C.J.S., Insurance, § 829(b), p. 896. 2
There is no merit in the contention of the insurance company that since Mrs. Fleming, who was the 'named insured' in the policy, expressed disapproval of the suggestion that Walker be permitted to work on the car, her husband was not in a position to give Walker implied permission to use it.
As has been said, at the time the policy was written the agent for the insurance company knew that Fleming and not his wife was the owner of the car and the real insured. If any permission from Mrs. Fleming were necessary, her husband, as the owner of the car and entitled to its control, had full authority to grant permission to Walker to repair the vehicle. While she did object to the arrangement, preferring to have the work done by a regular mechanic, she did not insist upon her objection.
The crux of the case, then, is whether there is sufficient evidence to support the finding that the 'actual use of the automobile' by Walker at the time of the accident was with the implied permission of Fleming.
The burden of proof was, of course, on the plaintiff, Peach, to bring himself within the coverage clause of the policy and show that such 'actual use' was with Fleming's permission. Here 'actual use' means the particular use at the time in question. Laroche v. Farm Bureau Mut. Automobile Ins. Co., 335 Pa. 478, 7 A. (2d) 361, 363; Conrad v. Duffin, 158 Pa.Super. 305, 44 A. (2d) 770, 772. Since, admittedly, there was no express permission for such use, the plaintiff was bound to show an implied permission.
In our opinion the plaintiff, Peach, has not sustained the burden imposed upon him.
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