Kemp v. MFA Mut. Ins. Co., 25165

• Decision Date: 10 June 1971
• Docket Number: No. 25165,25165
• Citation: 468 S.W.2d 700
• Parties: Verna M. KEMP et al., Respondents, v. MFA MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 700

468 S.W.2d 700

Verna M. KEMP et al., Respondents, v. MFA MUTUAL INSURANCE COMPANY, Appellant.

No. 25165.

Kansas City Court of Appeals, Missouri.

June 10, 1971.

Howard F. Major, Hamp Ford and Ronald A. Graves, Columbia, for appellant.

Terence C. Porter, of Welliver, Porter & Cleaveland, Columbia, for respondent American Ins. Co. Carl F. Sapp, of Sapp, Woods, Dannov & Orr, Columbia, for respondent, Verna M. Kemp.

HOWARD, Judge.

This case comes to the writer on reassignment. It is an appeal from the judgment of the circuit court in an equitable garnishment action brought by Verna M. Kemp under Section 379.200, RSMo 1969, V.A.M.S., against The American Insurance Company, MFA Mutual Insurance Company and Ralph Bruner. The action is to enforce and collect a judgment of $10,000.00 which Kemp obtained against Bruner because of personal injuries suffered by Kemp when she was involved in a collision between an automobile operated by her and a 1957 Pontiac owned by R. R. Suggett and driven by Bruner, upon which MFA had issued its liability insurance policy.

The judgment is to the effect that the liability coverage under the policy issued to Suggett by MFA up to maximum limits therein provided ($25,000.00), is the primary coverage for the 1957 Pontiac automobile with respect to the judgment in this case; that the liability coverage under a policy issued by American to Bruner on his owned automobile (with limited coverage while operating a non-owned automobile) was and is excess coverage available to be applied on this judgment only after coverage under the MFA policy has been exhausted; that the plaintiff, Kemp, the holder of a judgment for $10,000.00 against Bruner, have and recover from MFA the full amount of said judgment, with interest thereon at 6% per annum from March 19, 1966, together with costs; and that Bruner and American be discharged at the cost of MFA.

Briefly summarized, the evidence shows that at Suggett's request Bruner took the Suggett automobile to the filling station where he was employed for the purposes of repairing it. At noon Bruner drove into Fulton and had lunch at Cecil's cafe, where his wife was employed, as was his regular custom. On returning from lunch the collision with the Kemp automobile occurred as Bruner was preparing to turn into the filling station where he was employed.

The so-called omnibus clause of the MFA insurance policy provided that as to the Suggett automobile, the term 'insured' included any person using the automobile with the permission of the named insured providing his actual operation was within the scope of such permission. Plaintiff contends that Bruner was operating with Suggett's permission and was thus an additional insured under the above provision of the policy. MFA contests this contention and maintains that Bruner did not have permission to operate the automobile during the noon hour. This question of permission is the only issue present on this appeal.

In view of this issue a rather detailed statement of the evidence is required. Both Bruner (the driver) and Suggett (the owner) testified in the equitable garnishment proceeding. Also, a transcript of the testimony of both Bruner and Suggett at the trial of the negligence case was introduced in the garnishment proceeding. Furthermore, the depositions of both Bruner and Suggett taken in preparation for the trial of the negligence case were introduced in the garnishment proceeding. Thus, we have the testimony of the owner and the driver given on three different and distinct occasions.

Bruner had worked for Mr. Suggett off and on for more than twenty years. Mr. Suggett operated a 500 acre farm devoted mainly to hay and the feeding of cattle. Bruner and his wife lived on a 10 acre tract which adjoined Suggett's farm and the two farm houses were about one-fourth mile apart. At the time in question, Bruner worked full-time at the MFA service station and was paid by the week. This station was located a short distance outside the town of Fulton, Missouri. About every other night, Bruner worked an hour for Suggett after he got off work from the service station, helping to feed cattle and do chores on the Suggett farm. Bruner would frequently go to the Suggett house to see if there was anything that Suggett or his wife needed and frequently Suggett would contact Bruner to bring supplies, etc., from town to the Suggett farm or to come to the Suggett farm to work.

On occasions in the past when Bruner worked all day for Suggett and did not have his truck with him, Suggett would permit Bruner to drive the Suggett car to Bruner's home for lunch and return. Bruner drove the tractors, machinery and equipment around the Suggett farm as needed without specific directions or permission. He had driven just about every vehicle Suggett had owned over the years. He had driven this and other automobiles to get parts when farm machinery needed repairs without specific permission or instruction and on occasion took his wife with him on these trips.

It appears that in the fairly recent past, Bruner had worked at a Skelly oil station in Fulton and had, on at least several occasions, driven Suggett's car to that station to be repaired. The Skelly station was located in downtown Fulton, close to Cecil's cafe where Mrs. Bruner worked and Mr. Bruner walked there for lunch and had no reason to drive.

Mrs. Bruner had on occasion helped around the Suggett house (Mr. Suggett was 81 years old and his wife was elderly) and she worked regularly in Cecil's cafe in Fulton, Missouri. It appears that Mr. Bruner regularly ate lunch at Cecil's cafe and also washed dishes at the cafe during the noon hour even when he had regular employment at the filling station. While Mr. Suggett denied knowing whether Mr. Bruner ate lunch and if so, where he ate lunch, he admitted that he knew that Bruner was regularly at Cecil's cafe during the noon hour and he frequently called Bruner at Cecil's cafe to ask him to bring things to the Suggett farm with him when he came home or asked him to come to the farm to work. As a matter of fact, the present course of events began when he called Bruner at Cecil's cafe and asked him to come to the Suggett home after work because Suggett's car would not start. Bruner did so and got the car started and was then instructed to take it to the filling station the next morning for repairs.

Bruner regularly drove his truck to the MFA station and Mrs. Bruner drove their car to her work at Cecil's cafe. On this occasion, Bruner did not have his truck because he drove Suggett's automobile to work. The distance between the MFA filling station and Cecil's cafe was about two and a half miles. This was too far for Bruner to be expected to walk to Cecil's cafe for lunch and to wash dishes and return within a one hour lunch period. This was known to Suggett.

It must be remembered that the statement of Mr. Suggett was very brief and general. He simply told Bruner to take his car home with him on Friday night so that Bruner could get an early start on Saturday morning; to take the car with him on Saturday morning when he went to work at the MFA service station, repair the car and return the car to Suggett when Bruner came home from work at the service station Saturday evening. That was all that was said. There was no direction as to the route to be taken. There was no express limitation on the operation of the vehicle. The matter of Bruner's eating lunch or going to Cecil's cafe at noon was not mentioned or discussed. All that was said was: Take my car to the service station, fix it and bring it back when you come home from work.

It is thus apparent that there was no express permission from Suggett to Bruner authorizing Bruner to drive the car to Cecil's cafe at noon. The issue comes down to this: Can such permission be implied under all of the circumstances? The cases relied on by appellant to support its contention that there was no permission given to Bruner to use the Suggett vehicle at the time of the collision are all distinguishable. Thus, in McKee v. Travelers Insurance Company, Mo.App., 315 S.W.2d 852, a regular employee was permitted to take the company truck home with him at night and return it to work in the morning for the mutual convenience of the employer and employee in securing the employee's early arrival at work. The employee was specifically prohibited from using the truck for his own purposes. He did so and was involved in a wreck. Such personal use was held to be without permission under the omnibus clause of the employer's insurance policy because such use was in violation of the express prohibition.

In Straughan v. Asher, Mo.App., 372 S.W.2d 489, the issue was whether or not the owner of the vehicle gave her son specific permission to use the automobile. The court found that the only evidence properly admissible in the case was subject to two opposing inferences and, therefore, concluded that the plaintiff did not carry his burden of proof to show permission. In Varble v. Stanley, Mo.App., 306 S.W.2d 662, the seventeen year old son took his mother's car without the knowledge of either parent and had a wreck before he returned. Since the entire possession and operation was without the knowledge of the owner, the court found that it could not be with the permission of the owner. In the case at bar, Bruner had initial permission to operate the Suggett car and the question is as to the scope of such permission.

In Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605, the owner placed his car on a used car lot for sale; it was operated by a salesman for the salesman's personal convenience and a wreck ensued. No specific permission had been given for such operation. Plaintiff attempted to show that it was the custom that salesmen would operate cars left...