Johnson v. Am. Auto. Ins. Co.

• Decision Date: 22 July 1932
• Citation: 161 A. 496
• Court: Maine Supreme Court
• Parties: JOHNSON v. AMERICAN AUTOMOBILE INS. CO.

161 A. 496

JOHNSON

v. AMERICAN AUTOMOBILE INS. CO.

Supreme Judicial Court of Maine.

July 22, 1932.

Appeal from Supreme Judicial Court, Androscoggin County, in Equity.

Suit by Ruth Johnson, pro ami, against the American Automobile Insurance Company. From a decree dismissing the bill, the plaintiff appeals.

Appeal dismissed, and decree affirmed.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, and BARNES, JJ.

Berman & Berman, of Lewiston, for plaintiff.

Skelton & Mahon, of Lewiston, for defendant.

DUNN, J.

The defendant is a corporation writing liability insurance on automobiles. It executed and delivered to James F. Becker, a policy covering his car. On June 6, 1931, while this policy was in force and effect, George Benson Rix, an employee of Mr. Becker, crashed the automobile into a telephone pole, to the consequent physical injury of the plaintiff, a young woman who was riding gratuitously in the vehicle. She brought an action in tort against the automobile driver; judgment was entered on a verdict for $1,800, with taxable costs. This judgment remaining unsatisfied for twenty days, the creditor, the present plaintiff, sued in equity, to reach and apply the insurance money, in the amount of her judgment. R. S. c. 60, § 178 et seq. The cause was heard on bill, answer, replication, and proof. The bill was decreed dismissed. The plaintiff appealed.

The appeal, as argued, is reduced to the single question: Was the automobile, at the time of the accident, being operated, within the scope of the "extended coverage" clause in the liability policy, "with the consent of such named Assured" (i. e., the consent of the owner of the automobile)?

The "extended coverage" clause reads:

"That in addition to the Assured named in this policy, such insurance as is granted hereunder shall be available, in the same manner and under the same conditions and to the same extent as it is available to such named Assured, to any person or persons while riding in or legally operating the automobile covered by this policy, and to any person, Arm or corporation legally responsible for the operation thereof; but only while it is being used * * * with the consent of such named Assured. * * *"

Rix, the employee, had been told, around half past 8 in the morning, to drive the car to his home—the approximate distance of a mile—there wash and polish it, and bring it back "about 11:30 at the latest."

He drove the car home and washed it. But he testified it could not be polished until dry; and, as he thought it would dry more rapidly in motion than when idle, he drove three and one-half miles still farther in opposite direction from his employer's to his aunt's house, and thence to a neighbor's, where ho was asked to take the plaintiff to Lewiston to do an errand. He did so, the injury taking place on the way back. The employer knew nothing of the trip until afterward.

The accident, it was testified, occurred at 11:15 o'clock. There was not then remaining time, even had there been no mishap, for the employee to have taken the plaintiff to her home, returned to his own, polished the car, and been at his employer's at half past 11.

The justice below found the fact to be that, on the ride involving the collision, the automobile was not being used with the consent, express or implied, of the "named Assured," but that the employee was using it in disregard of, and unrelation to, the specified object for which it had been intrusted to him.

Evidence abundantly sustains the finding. The trial court concluded, as a matter of law, that Rix was not covered by the terms of the policy, as to the accident.

Plaintiff's counsel cite, as supporting the appeal, the cases of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A. L. R. 500; Stovall v. New York Indemnity Co. (1928) 157 Tenn. 301, 8 S.W.(2d) 473, 72 A. L. R. 1368; American Automobile Insurance Co. v. Jones (1932) 163 Tenn. 605, 45 S.W.(2d) 52; Peterson v. Maloney (1930) 181 Minn. 437, 232 N. W. 790; Holton v. Eagle Indemnity Co. (1928) 196 N. C. 348, 145 S. E. 679; Maryland Casualty Co. v. Konan (C. C. A.) 37 F.(2d) 449, 72 A. L. R. 1360; Odden v. Union Indemnity Co. (1930) 156 Wash. 10, 286 P. 59, 72 A. L. R. 1363.

In the Dickinson Case it was held, but not with full concurrence, that slight deviations from route and purpose, by one who had the use of a car to go home and change his clothes, and hurry back, did not destroy the Insurer's liability. The deviations consisted in driving to a saloon, and taking in passengers; thence a mile farther away to another saloon; and on to a third. The driver, being doubtful if he still had time to carry out his original plan, then started toward a place where he could see the city clock. Due solely to his negligence, the car skidded, striking a tree, and one of the passengers was mortally hurt.

Somewhat broadly stated, the Stovall Case extends the protection of the "omnibus" clause, not only to the taking and use of the Car at the outset, but also to the particular use at the time in question.

The facts were these: A salesman employed by a dry goods concern of Memphis, Tenn., was attending a convention in that city. A car belonging to the firm, which had been assigned to him, for business only, in his Mississippi territory, but which was forbidden to him for his own use, he brought to Memphis, and stored in the name of his employer in a public garage. The claim check for the car he delivered to his superior officer, the sales manager. On the closing day of the convention, the salesman obtained the check from the manager, got the car, and carried certain customers of the firm to the railroad station. After returning the car to the garage, he did not turn in the check at the store, as he should have done; nor was he asked for it.

During the afternoon, he "slipped off" without the knowledge of his employer (the employee testified that, had he asked for leave, it would not have been granted), went to the garage, presented the check, removed the automobile, and started for...