Hauser v. Hill

• Court: Missouri Court of Appeals
• Writing for the Court: SMITH
• Citation: Hauser v. Hill, 510 S.W.2d 765 (Mo. App. 1974)
• Decision Date: 23 April 1974
• Docket Number: No. 35223,35223
• Parties: Maria Teresa HAUSER et al., Plaintiffs-Respondents, v. Larry HILL et al., Defendants, Zeuschel Equipment Company and Jack Zeuschel, Defendants-Appellants. . Louis District, Division Two

Page 765

510 S.W.2d 765

Maria Teresa HAUSER et al., Plaintiffs-Respondents, v. Larry HILL et al., Defendants Zeuschel Equipment Company and Jack Zeuschel, Defendants-Appellants.

No. 35223.

Missouri Court of Appeals, St. Louis District, Division Two.

April 23, 1974.

Motion for Rehearing or to Amend Opinion, or for Transfer to

Supreme Court

Denied May 14, 1974.

Application to Transfer Denied July 22, 1974.

William R. Hirsch, Clayton, for defendant Hill.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John L. McMullin, St. Louis, for defendant Allstate Ins. Co.

Zeuschel Equip. Co. & Jack Zeuschel, Wuestling & James, St. Louis, for defendants-appellants.

W. W. Sleater, St. Louis, for plaintiffs-respondents.

SMITH, Presiding Judge.

Defendants-appellants appeal from a judgment entered in a court-tried case in a declaratory judgment action. The declaratory judgment was that appellants' policy of automobile liability insurance provided coverage to plaintiffs, allegedly injured in a collision with appellant Zeuschel Equipment Company's vehicle while it was being operated by that company's employee, Larry Hill.

Plaintiffs brought their action in four counts. Count I sought a declaratory judgment as to whether Hill was covered by the Zeuschel policy, and alleged that, if he was not, plaintiffs' uninsured motorist coverage issued by defendant Allstate Insurance Company would be applicable. Count II sought damages arising from the accident on behalf of Maria Hauser; Count III sought consortium damages for her husband Leslie; Count IV sought damages for injuries to Mrs. Hauser's daughter Vivian Marquez, a minor.

The declaratory judgment count was tried to the court in equity and following the judgment heretofore mentioned the remaining counts were then transferred to the assignment division for later trial in a law division.

We are confronted initially with plaintiffs' motion to dismiss based on the contention that the judgment is not appealable until judgment has been entered on all counts. The trial court made no order that the judgment was either final or interlocutory. Determination of the question is governed by Rule 81.06, V.A.M.R. ¹ In a strict sense Count I was 'related' to the other counts as all had their genesis in the automobile accident. But we do not believe the rule contemplates such a strict construction. Count I deals with a question of contract as to whether coverage is afforded Hill under the Zeuschel policy. It in no way involves the liability of Hill for tort committed against plaintiffs as the other counts do. The issues in Count I are entirely different from those in the remaining counts and the determination of Count I has no effect upon the determination of the other counts except to the extent it determines which insurance company will defend those counts. The dispute in Count I is essentially between Allstate and Zeuschel, with plaintiffs and Hill occupying the position of interested bystanders. The remaining counts involve plaintiffs' charges of tortious negligence against Hill. We conclude that the judgment on Count I was a final judgment for purposes of appeal. See Readenour v. Motors Insurance Corporation, 287 S.W.2d 135 (Mo.App.1956) (1); Robb v. N.W. Electric Power Cooperative, 297 S.W.2d 385 (Mo.1957).

We turn to the merits. The case involves the continuing difficult question of permissive use of a vehicle under an omnibus clause of an automobile insurance policy. ² Such permission may be either express or implied. Kemp v. MFA Mutual Insurance Company, 468 S.W.2d 700 (Mo.App.1971). In this case no express permission is claimed nor established. The rule on implied permission has been stated by the Supreme Court in Mazdra v. Selective Insurance Company, 398 S.W.2d 841 (Mo.1966) as:

'In the absence of express consent to an employee to use his employer's car, an implied permission or consent extends only to its use within the scope of employment, apart from slight deviations, unless there has been a permission to use the car generally or a course of conduct or a practice with the owner's acquiescence, reasonably indicating the employee's right to assume permission in the particular circumstances.' (Emphasis supplied). (l.c. 844).

This indicates that three different situations can each warrant a conclusion of permission to drive by an employee: (1) within the scope of employment, (2) use generally or (3) conduct or practice reasonably indicating a right to assume permission. 'The permission contemplated is something more than mere sufferance or tolerance without taking steps to prevent, and the term is used, rather, in the sense of leave, license or authority with power to prevent . . ..' M.F.A. Mutual Insurance Company v. Alexander, 361 S.W.2d 171 (Mo.App.1962) (3--7).

However--'Permission has a negative, as well as an affirmative, connotation. The absence of a prohibition against an expected or foreseeable or natural use may be strongly indicative that such use is permissible.' Kemp v. MFA Mutual Insurance Company, 468 S.W.2d 700 (Mo.App.1971) (2).

The rules of law to be applied are not really in dispute, it is their application to the facts here (and in most implied permission cases) which presents the problem. We review court tried cases on both the law and the evidence, giving deference to the opportunity of the trial judge to determine credibility and reversing only if the judgment is clearly erroneous. We also recognize that whether implied permission exists is determined by what was actually said and done prior to the accident and is not created nor destroyed by post-accident utterances and opinions. Allstate Insurance Co. v. Hartford Accident & Indemnity Co., 486 S.W.2d 38 (Mo.App.1972) (3--6).

Hill had been employed by Zeuschel for 1 1/2 years as order filler and delivery boy. Prior to the acquisition of the pickup truck involved in the accident, Zeuschel owned a station wagon. Hill used that vehicle to make deliveries. On occasion he would use the station wagon to go from his place of employment to his home for lunch and return. On occasion when he was making deliveries he would go home for lunch. There was no prescribed time for him to make...