Hinton v. Indem. Ins. Co. Of North Am.

• Decision Date: 08 April 1940
• Citation: 8 S.E.2d 279
• Court: Virginia Supreme Court
• Parties: HINTON . v. INDEMNITY INS. CO. OF NORTH AMERICA.

8 S.E.2d 279

HINTON .

v.INDEMNITY INS. CO. OF NORTH AMERICA.

Supreme Court of Appeals of Virginia.

April 8, 1940.

Rehearing Denied June 18, 1940.

Appeal from Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Action by Ida V. Hinton, administratrix of the estate of Lionel W. Hinton, deceased, against the Indemnity Insurance Company of North America, on a liability insurance contract. Verdict for plaintiff, and from a judgment setting aside the verdict, plaintiff appeals.

Reversed, verdict reinstated, and final judgment entered for plaintiff.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Harry H. Kanter, I. W. Jacobs and W. R. Ashburn, all of Norfolk, for plaintiff in error.

W. C. Pender, of Norfolk, for defendant in error.

SPRATLEY, Justice.

Lionel W. Hinton, on the evening of December 28, 1937, was struck and killed by an automobile owned by the James G. Gill Company, Inc., and driven by John Hodges. Mrs. Ida V. Hinton, in an action at law brought by her as administratrix of the estate of the decedent, her husband, against the James G. Gill Company, Inc., John Ball and John Hodges, for the death of her intestate, recovered a judgment for $7,500 and costs against the defendant, Hodges, alone.

Plaintiff, being unable to effect a collection of the judgment against Hodges, instituted this action against the Indemnity Insurance Company of North America upon its contract for liability insurance covering the automobile driven by Hodges when Hinton was killed.

The pertinent clauses in the policy of insurance, setting out the extent of the coverage, are as follows:

"III. Definition of 'Insured.' The unqualified word 'insured' wherever used in coverages A and B and in other parts of this policy, when applicable to these coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is 'pleasure and business' or 'commercial, ' each as defined herein, and provided further that the actual use is with the permission of the named insured."

"Any and all provisions of this policy which are in conflict with the statutes of the state wherein this policy is issued are understood, declared and acknowledged by this company to be amended to conform to such statutes."

Relating to such coverage, Virginia Code, 1936, section 4326a, provides, in part, as follows:

"No such policy shall be issued or delivered in this State, to the owner of a motor vehicle, by any corporation or other insurer authorized to do business in this State, unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner."

It is conceded that the use of the automobile, at the time of Hinton's death, was within the designation "pleasure and business, " and that Hodges was not a person within any class as to which the insurance company contracted against liability.

The James G. Gill Company, Inc., is engaged as a wholesale distributor of coffee and tea. In this business, it owned and operated three trucks and fourteen passenger cars, of which the car, a Plymouth sedan, driven by Hodges, at the time of the accident, was one.

The policy issued by the defendant to the Gill Company covered all of the above trucks and passenger cars. The passenger cars are kept in the possession of and in continuous use by the officers and salesmen of the company. The company, maintaining no garage, permitted its officers and salesmen to take the cars to their respective homes and to use them for their own business or pleasure after they had completed the business of the company.

The Plymouth sedan, driven by Hodges, was a car which the Gill Company had permitted John Ball, one of its salesmen, to select, but which was actually purchased by the company in its name. This car, over which John Ball had full possession and control, was used both in the business of the company and for the pleasure and convenience of the salesman.

John Ball, about twenty-two years of age, is the son of Ernest R. Ball, a vice-president, director and manager of the sales division of the Gill Company. Mr. Ball, Sr., had general supervision over that division and over the operation of the automobiles of the company. Young Ball lived at his father's home in Norfolk, and the car was kept there.

John Hodges, a college student between eighteen and nineteen years of age, and John Ball were close friends and had attended school together. John Hodges is the son of Dean W. T. Hodges of the Norfolk Division of the College of William and Mary. Young Hodges entered the College of William and Mary in Williamsburg in the fall of 1937. On account of a difference with his step-mother, Hodges did not reside in his father's home at Norfolk, and when he returned to Norfolk from Williamsburg, during the fall of 1937, he spent two weekends each month at the home of Ball. He says he had spent such week-ends with the Balls from April or May, 1937, to the time of the accident, except during a period of three summer months when he was at sea. At the time of the accident, he was spending his Christmas holidays at their home and had been there for a week.

Hodges testified that he had driven the car of young Ball on several occasions during the week preceding the happening of the accident. He mentioned two specific occasions, on one of which he took Mrs. Ball, wife of vice-president Ball, to the downtown section of Norfolk, in order that she might do some holiday shopping, and on another occasion, when, at the request of Mr. Ball, Sr., he took a negro employee from the Ball home to the employee's home in another section of the city. He said he had used the car at other times, but could not recall the specific occasions; and that it had always been with the consent of young Ball, and the consent of Mr. Ball, Sr., whenever the latter was present or knew that he was taking the car. He never asked Mr. Ball, Sr., for the use of the automobile, because he felt that he was perfectly welcome to its use.

Hodges said that on the evening of December 28th he arrived at the Ball residence about six p. m., in the car of Dean Hodges, his father, which car he had been using during the day; that Ball, Sr., when he came home that evening, commented on the fact that the Hodges' car was parkedin front of his house; that, after Ball, Jr., came home, he, Hodges, took that car back to his father's home and left it there; that John Ball, by agreement, followed him in his Plymouth car and brought him back to the Ball home; that Mr. Ball, Sr., knew of that trip and its purpose; and that he then had dinner with the Ball family, composed of Mr. and Mrs. Ball, Sr., Miss Anne Ball and John Ball.

Hodges and young Ball had, prior to the dinner, made plans to go to a dance that evening, each taking a young lady. The young ladies lived in separate parts of the city. It was arranged that Hodges should take the Plymouth car, go and get his young lady partner and come back to the Ball home to pick up Ball, Jr.; and that then all three were to go after the latter's partner, and thence go to the dance. He testified that their plans to take the young ladies to the dance that evening were discussed in the presence and hearing of Ball, Sr., at the dinner table; that, in accordance therewith, after dinner, he dressed for the dance, came downstairs, got the keys to the Plymouth car off the radio by the door in the living room where Ball, Jr., had left them, went out, got in that car, which was in the driveway behind Ball, Sr.'s car, and started on his trip; that Ball, Sr., who was then sitting in the living room, made no objection to his use of the car; and that Ball, Jr., had given him express permission to use it.

On the way to pick up the young lady whom Hodges was to escort to the dance, he struck and killed plaintiff's decedent.

In a discussion after the accident, on the same night, between Ball, Sr., and Dean Hodges, the latter said that Ball, Sr., told him that they were very glad to have young Hodges in their home with their son; that he had been very useful to them during the Christmas holidays; that they had once or twice asked him to take Mrs. Ball shopping; that they "were especially glad to have him on Christmas Eve and New Year's day, with the fact that John (Hodges) didn't ever take a drink and he and Jack (Ball, Jr.) would take a Christmas drink occasionally, and they didn't want to be driving the car;" and that they also had had young Hodges take their colored chauffeur home Christmas night.

Mr. Ball, Sr., called as a witness for the plaintiff, testified that he did not recall any conversation in his home, or at his dinner table, about the two young men going after the young ladies to escort them to a dance, and that he did not remember anything that was talked about that evening, and would neither...