Horn v. Allied Mutual Casualty Company

• Decision Date: 31 October 1959
• Docket Number: No. 6158.,6158.
• Citation: 272 F.2d 76
• Parties: Karen Sue HORN, a minor, by and through her guardian ad litem, Wendell E. GODWIN; Howard C. Elkins; Mabel Elkins; Helen Loveless; Ida A. Davis; Jean Lomax; and Jerry Margaret Harlow, a minor, by William A. Kahrs, her guardian ad litem, Appellants, v. ALLIED MUTUAL CASUALTY COMPANY, DES MOINES, IOWA, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

272 F.2d 76 (1959)

Karen Sue HORN, a minor, by and through her guardian ad litem, Wendell E. GODWIN; Howard C. Elkins; Mabel Elkins; Helen Loveless; Ida A. Davis; Jean Lomax; and Jerry Margaret Harlow, a minor, by William A. Kahrs, her guardian ad litem, Appellants, v. ALLIED MUTUAL CASUALTY COMPANY, DES MOINES, IOWA, a corporation, Appellee.

No. 6158.

United States Court of Appeals Tenth Circuit.

October 31, 1959.

Robert S. Lomax, Wichita, Kan. (Fred J. Gasser, Wendell E. Godwin, and Clarence Holeman, Wichita, Kan., on the brief), for appellants.

Malcolm Miller, Wichita, Kan. (George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, Kan., on the brief), for appellee.

Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.

PICKETT, Circuit Judge.

Allied Mutual Casualty Company brought this declaratory judgment action to determine its responsibility under an automobile liability insurance policy. This is an appeal from a judgment decreeing that Allied Mutual was not obligated with respect to certain claims growing out of an automobile collision. The policy's protection extended to any bodily injury and property damage liability arising from the use of an automobile owned by Charles C. Brooker, the named insured. The insured automobile was involved in an accident while being driven by Karen Sue Horn, a 15 year old girl, who had been given temporary use of the car by Brooker's stepdaughter, Jerry Margaret Harlow.

A dispute arose as to whether the "Omnibus clause"¹ in the policy obligated the insurer to defend Karen Sue in any actions brought as a result of the accident and to pay any judgments recovered against her. To settle the dispute, the insurance company joined as defendants in this action Karen Sue Horn and the owner and occupants of the other automobile involved in the collision. Later the insured, his wife, and Jerry Margaret were brought into the action as third party defendants. The complaint alleged that Jerry Margaret's permission to use the car was limited to driving it to and from school and that the use by Karen Sue was for her personal benefit and without the permission of either the insured or his wife. Karen Sue's answer alleged that the circumstances surrounding her use of the automobile made her an "insured" within the meaning of the policy. The answers of the other defendants claimed that their injuries and property damage were caused by the negligence of Karen Sue and that Jerry Margaret and her parents, Charles and Loree P. Brooker, were also liable under a Kansas statute (K.G.S. 1949, 8-222) for having permitted the 15 year old Karen Sue to drive the automobile, and finally that the plaintiff was responsible under its policy with respect to the liability of each of these persons. The several issues raised by the pleadings were separated for trial² and the issue presented here deals only with whether the insurance coverage extended to the claims against Karen Sue and Jerry Margaret. The matter was submitted to the trial court without a jury, and the court found that Karen Sue was not using the Brooker automobile with the permission of either the insured or his wife, and entered judgment to the effect that Karen Sue was not an insured within the meaning of the omnibus clause of the policy, and that the insurance company was not required to defend an action against Karen Sue or Jerry Margaret or to pay any judgment rendered against them, or either of them.

The appellants contend that Karen Sue, at the time of the accident, was using the automobile with the implied consent and permission of the Brookers and therefore was insured under the policy provisions. More precisely, their position is that the nature of Jerry Margaret's permission was such that controlling principles of law compel the conclusion that she had implied permission to allow others, including Karen Sue, to use the car. A determination of this contention requires a reference to the evidence and findings of fact relating to the nature of Jerry Margaret's permission.

Charles Brooker purchased a 1956 Ford for the primary use of his wife and stepdaughter, Jerry Margaret, who was a 16 year old high school girl. Although Brooker owned the car, it was understood that his wife should decide when Jerry Margaret would be allowed to use it. The latter had an unrestricted driver's license and Mrs. Brooker permitted her to drive to and from school several times each week. She was also frequently allowed to use the car on Sunday afternoons. However, the evidence is clear that there was no general use of the car by Jerry Margaret but, in every instance of use, she was required to obtain her mother's specific permission. Neither of the Brookers had ever instructed Jerry Margaret not to allow others to drive the car. Mrs. Brooker testified that the subject had never come up because she contemplated that her daughter would simply drive to and from school. The evidence is without conflict that Jerry Margaret had never loaned the car or permitted any one else to drive it prior to the day of the accident. However, on April 17, 1956, Jerry Margaret allowed Karen Sue to drive the car from the school to the Horn residence to pick up lunch money and a school library book, and return. Karen Sue was under 16 years of age and had only a restricted driver's permit. The accident occurred as Karen Sue was returning to the school. Until after the accident was reported to them, the Brookers did not know Karen Sue or that she had driven the car. The district court found that neither of the Brookers gave Jerry Margaret permission to allow others to drive the automobile. The court also found that at the time of the accident, Karen Sue was on a mission solely for her own benefit and that Jerry Margaret had not accompanied her on the trip to the Horn residence.

The policy was issued in Kansas and the interpretation of the omnibus clause is to be determined by the law of that state. Fisher v. Firemen's Fund Indemnity Co., 10 Cir., 244 F.2d 194. It is urged that Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P.2d 498, is controlling, but we think not. In that case the court considered the question of whether liability incurred by a second permittee was within the coverage of an omnibus clause similar to the one under consideration here. The named insured's husband borrowed the automobile covered in the liability policy for use on a business trip. It was customary for him and a fellow-employee, Gibbs, in the course of their employment, to travel together in one automobile. They normally took turns providing the use of their respective automobiles for such travel and usually shared the driving. On the trip when the accident occurred, the husband's car was being repaired and the insured permitted him to use the...