Jordan v. Consolidated Mut. Ins. Co.
| Decision Date | 11 June 1976 |
| Citation | 59 Cal.App.3d 26,130 Cal.Rptr. 446 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert G. JORDAN, Plaintiff and Appellant, v. CONSOLIDATED MUTUAL INSURANCE COMPANY and Farmers Insurance Group et al., Defendants and Respondents. Civ. 15248. |
Plaintiff suffered serious bodily injuries when a 1965 Corvette automobile driven by Gary Donald Lewis collided with plaintiff's car. Lewis, the driver of the Corvette, was killed in the collision. He had been the managing employee of John's Gulf Station in Brea, where Gary M. Gregory, the owner of the Corvette, had left it for repair.
Prior to commencing the present action, plaintiff prosecuted an action against the estate of Gary Lewis, John Compton, the proprietor of John's Gulf Station, and Gary M. Gregory, the owner of the Corvette. In that action, after trial by jury, plaintiff was awarded a judgment against the estate of Gary Lewis in the amount of $55,000 together with costs. However, verdicts and judgment were rendered in favor of Gregory and Compton. Plaintiff instituted this action against Consolidated Insurance Company (hereafter 'Consolidated'), Gregory's automobile liability insurance carrier, and Truck Insurance Exchange (hereafter 'Truck'), 1 Compton's insurer under a garage operator's package policy, seeking to establish that Gary Lewis was an additional insured under each policy and that each carrier is liable for the payment of plaintiff's $55,000 judgment against the estate of Gary Lewis. Upon trial to the court without jury, the court determined that neither insurance policy covered Gary Lewis and entered judgment in favor of both Consolidated and Truck. Plaintiff appeals from the judgment.
John Compton, the proprietor of John's Gulf Station in Brea, operated another service station in Corona and left Gary Lewis in complete charge of the service station in Brea. Lewis took care of all the paper work at the Brea station, wrote checks and deposited the receipts. He had authority to hire and fire anybody he wanted. Compton visited the Brea station only about twice a week. Gary Lewis performed most of the mechanics work at the station. His father, Ed Lewis, was also employed at John's Gulf Station. His duties related mostly to the pumping of gasoline.
On the afternoon of March 20, 1969, Gary Gregory drove his 1965 Corvette automobile to John's Gulf Station to have it tuned up. Gregory remained on the premises while Gary Lewis was performing the tune-up and engaged in small talk with Lewis. When Gary Lewis finished the tune-up, Gregory advised him that the Corvette had a muffler that was rattling and asked Gary Lewis to check it out. Lewis did so and advised Gregory that he needed a new muffler or muffler pipe. Lewis was unable to get the part that day, but stated that he could get it the next day. Gregory said he would bring the car back the next day. Gregory also asked Lewis to check out the cause of another problem he was having, an electrial drain.
Gregory brought the Corvette back the next day, March 21, 1969. He instructed Gary Lewis to repair the muffler and check the electrical drain over the weekend and stated that he would pick up the car on Sunday, March 23, 1969. It was agreed that, if Gregory did not return by 8 p.m. on Sunday, Gary Lewis would leave the car outside the station with the keys on a front tire. Gregory thereupon turned the car and keys over to Gary Lewis. He did not instruct Lewis not to drive the car. He left it to Gary Lewis to find and fix the things he wanted done. Gregory's conversation with Lewis on March 21 was of brief duration inasmuch as Gregory was to catch a plane to Lake Tahoe where he planned to spend the weekend.
Ed Lewis, Gary Lewis' father, was on the premises of the Brea service station on both of the occasions when Gregory brought his Corvette in. Ed Lewis testified 2 that he overheard part of the conversation between his son and Gregory on the first occasion, and the substance of the conversation was the possible sale of the Corvette by Gregory to Gary Lewis. Gregory told Gary Lewis that he would bring the car back on the weekend and leave it for other repairs, at which time Lewis could take it for a test drive. When Gregory departed the first day, Gary Lewis discussed with Ed Lewis the advisability of purchasing the car. When he returned to the station the next day, Gregory told Gary Lewis that he had all weekend to put the tail pipe on and to take the car out for a test drive.
Later on the night of March 21, 1969, Ed Lewis agreed to meet Gary Lewis at a tavern in Buena Park. Ed Lewis awaited his son outside the tavern. He saw his son driving the Corvette and remonstrated with him about driving the car. Gary Lewis replied that he had permission to do so. Ed Lewis stated that that was no time to drive a customer's car. Gary Lewis replied that he was trying it out. Thereafter the Lewises entered the tavern and had a couple of drinks. They thereafter left the tavern, and, subsequently, the ill-fated collision occurred at about 1:30 a.m. on March 22, 1969.
Gary Gregory, who by happenstance was an employee of Consolidated, denied that he was interested in selling the Corvette, denied that he discussed its sale to Gary Lewis, denied that he gave Gary Lewis permission to drive the car and testified that he had no discussion at all with Gary Lewis respecting whether he would or would not drive the Corvette. Gregory knew, of course, that the Corvette would have to be driven in and about the service station.
John Compton testified that, after the accident, Gary Gregory admitted that he had given Gary Lewis permission to drive the Corvette. He testified that in a subsequent conversation with Gregory, Gregory told him that his insurance company (Consolidated) was not too happy about the foregoing admission, and then Gregory denied that he had given Lewis permission. Compton also confirmed that Gary Lewis had told him that he was thinking of buying Gregory's Corvette.
There was also evidence that Gary Lewis and John Compton had discussed the possibility of entering into a partnership. It was further established that the normal hours of operation of the Brea service station were 7 a.m. to 9 p.m. and that the station closed at or about 9 p.m. on March 21, 1969.
Among others, the trial court made the following findings of fact: Gary Lewis was an employee of John Compton doing business as John's Gulf Station on March 22, 1969; Gary Lewis was not a partner of John Compton; Gary Lewis was operating the Corvette automobile at the time and place of the accident without the permission, express or implied, of Gary Gregory or John Compton or anyone else; Gary Lewis was not in the course and scope of his employment at the time and place of the accident; Gary Lewis was not roadtesting the Corvette automobile at the time of the accident, nor was he performing any duty for the benefit of John Compton or for Gary Gregory or as agent of either John Compton or Gary Gregory at the time of the accident.
Plaintiff objected to the proposed findings of fact and requested special findings including, among others, the following: Gary Gregory gave Gary Lewis permission to drive the Corvette in and around John's Gulf service station; Gary Gregory admitted to John Compton that he had given Gary Lewis permission to drive the Corvette; Gary Lewis had told Gregory that he was interested in purchasing the Corvette; Gregory told Gary Lewis that he could take the Corvette out for a test drive; Gary Lewis was using the Corvette reasonably believing he had the implied permission of Gregory to do so; and on March 22, 1969, Gary Lewis was an 'executive officer' of the business known as John's Gulf Station.
The Consolidated policy is a more or less standard automobile insurance policy describing the 1965 Corvette as the vehicle principally insured and covering Gary Gregory as the named insured for, among other things, liability for bodily injury and property damage. The policy limits for bodily injury liability were $100,000 for each person and $300,000 for each occurrence. The policy period was one year commencing March 31, 1968. The policy defined the persons insured as '(1) the named insured and any resident of the same household, (2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is Within the scope of such permission . . ..' (Emphasis added.) 3
Plaintiff contends that insofar as the policy purports to restrict coverage of permissive users to those operating or using the Corvette 'within the scope of such permission' it is against public policy and ineffective; that the evidence establishes as a matter of law that Gary Lewis was driving the Corvette at the time and place of the accident with the permission of Gary Gregory; further, that coverage attaches if Gary Lewis reasonably believed he had the permission of Gregory to drive the vehicle; and that the court committed reversible error in refusing to make findings on the subjects of plaintiff's requested special findings.
Consolidated's brief does not, for the most part, respond to plaintiff's contentions. Rather, Consolidated sidesteps plaintiff's arguments and contends that the court's finding that Gary Lewis was not driving the Corvette at the time and place of the accident with the permission of Gary Gregory is a finding of ultimate fact...
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