Kadrmas v. Mudna

• Decision Date: 31 January 1961
• Docket Number: No. 7924,7924
• Parties: Clarence KADRMAS, a Minor, by his Guardian ad litem, Vitres Kadrmas, Plaintiff and Respondent, v. Arthur MUDNA, also known as Arthur Meduna, Defendant, Third-Party Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Los Angeles, California, Third-Party Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 346

107 N.W.2d 346

Clarence KADRMAS, a Minor, by his Guardian ad litem, Vitres

Kadrmas, Plaintiff and Respondent, v. Arthur MUDNA, also known as Arthur Meduna, Defendant, Third-Party Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Los Angeles, California,

Third-Party Defendant and Respondent.

No. 7924.

Supreme Court of North Dakota.

Jan. 31, 1961.

Syllabus by the Court.

1. A person, using an automobile to entertain friends and transport them from place to place, who turns over manual operation of the automobile to one of his guests but remains in the automobile with full power of control over its use, continues to be the person using such automobile. Persellin v. State Automobile Insurance Association, 75 N.D. 716, 32 N.W.2d 644.

2. The evidence is examined and it is held, for reasons stated in the opinion, that the driver of the automobile at the time the accident occurred which resulted in plaintiff's injury was not an 'insured' within the terms of the extended coverage provisions of the automobile liability insurance policy under which recovery is sought.

Greenwood & Swanson, Dickinson, for third-party plaintiff and appellant.

Conmy, Donahue & Conmy, Bismarck, for third-party defendant and respondent.

MORRIS, Judge.

Clarence Kadrmas, a minor, brought an action by his guardian ad litem to recover damages for personal injuries received on August 15, 1958 in an automobile accident. The driver of the automobile and defendant in that action was Arthur Mudna. Mudna caused to be issued a third-party summons and complaint in which the Farmers Insurance Exchange was named as third-party defendant. The court ordered a separate trial of the issues on the third-party claim. The action against Mudna was tried to a jury. A verdict was returned against him for $15,000 upon which judgment was duly entered. The issues arising between the third-party plaintiff and the third-party defendant were tried to the court without a jury pursuant to a stipulation of the parties. The court made findings of fact and conclusions of law, and ordered dismissal of the third-party complaint with prejudice. Arthur Mudna, the third-party plaintiff, appeals from a judgment of dismissal entered pursuant to the order.

At the time the accident occurred there was in effect a liability insurance policy issued by Farmers Insurance Exchange to Mary Kadrmas describing the automobile involved. This policy contained the following extended coverage clause:

'(1) If the insured named in Item 1 of the Declarations is an individual, the term 'named insured' includes his spouse if a resident of the same household; (2) the unqualified 'insured' includes (a) the named insured and his relatives, and (b) with respect to the described automobile, or a newly acquired automobile, any other person or organization legally responsible for its use, provided the actual use of the automobile is by the named insured or with his permission, * * *.'

Another provision of the policy defines relatives as:

'The unqualified word 'relatives' means, while residents of the named insured's household, his relatives and any other person under the age of twenty-one in the care of an insured.'

Item 1 of the declarations designates Mary Kadrmas as the named insured.

Clarence Kadrmas was injured while riding in the automobile described in the policy while it was being driven by Arthur Mudna who claims to be an insured within the terms of the extended coverage clause. The trial court determined that Arthur Mudna was not an insured. Mudna contends on this appeal that the trial court erred. Clarence, who was between 18 and 19 years of age, testified that for about three weeks prior to the accident he had been working on a farm operated by his brother-in-law and that Arthur Mudna was a fellow employee. A few days before the accident he and another young man went to Minneapolis for a physical examination for enlistment in the U. S. Marine Corps. On their return trip they rode all night on the train, in a coach, and arrived in the city of Dickinson about four o'clock in the morning. Clarence Kadrmas went out to his father's farm for breakfast and then to his brother-in-law's farm where he worked throughout the day. In the evening he went to Dickinson in the automobile described in the policy, which he used with his mother's permission. He took with him his fellow employee, Arthur Mudna, and on the way picked up three other young men. Some vodka and beer was purchased. It appears from other testimony that Clarence did the driving. They went out to a dance hall known as the Highway Inn. Clarence drank some of the liquor. While they were at the inn he told one of his companions that he was going to sleep and that when they were ready to leave, to wake him. He then went to the car and got in the back seat for the purpose of going to sleep. The next thing he remembered was regaining consciousness while lying in a ditch following the accident. He had not given Mudna permission to drive the car. He thinks it was about eleven-thirty o'clock in the evening when he went to the car to sleep, although it could have been as late as twelve-thirty.

Arthur Mudna testified...