Libero v. Lumbermens Mut. Cas. Co.

• Decision Date: 13 March 1956
• Court: Connecticut Supreme Court
• Parties: Margaret LIBERO et al. v. The LUMBERMENS MUTUAL CASUALTY COMPANY. Supreme Court of Errors of Connecticut

Page 622

121 A.2d 622

143 Conn. 269

Margaret LIBERO et al. v. The LUMBERMENS MUTUAL CASUALTY COMPANY.

Supreme Court of Errors of Connecticut.

March 13, 1956.

Isadore Chaplowe and James R. Greenfield, New Haven, for appellants (plaintiff).

David M. Reilly, New Haven, with whom was David M. Reilly, Jr., New Haven, for appellee (defendant).

Before INGLIS, C. J., BALDWIN, WYNNE and DALY, JJ., and SHEA, Superior Court Judge.

INGLIS, Chief Justice.

In this action the plaintiffs seek to recover from the defendant, as an insurer against public liability of an automobile owned by George Bodnar, the amounts of judgments rendered in their favor against James Harris for damages for personal injuries sustained by them by reason of the negligent operation of the insured automobile by Harris. They base their case on the claim that Harris was an additional insured under the policy. The principal question on this appeal is whether the trial court erred in setting aside the plaintiffs' verdict because of claimed errors in the charge.

The material facts claimed to have been proved by the plaintiffs are the following: On January 14, 1948, the four plaintiffs recovered judgments in various amounts against James Harris for personal injuries sustained by them as a result of the negligence of Harris in the operation of an automobile owned by George Bodnar. These judgments have not been paid. At the time of the accident in which the plaintiffs were injured, Bodnar was insured by the defendant under a public liability policy on that automobile. The policy provided that the 'word 'insured' * * * includes [not only] the named insured [but also] any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use * * * is with the permission of the named insured * * * [The provisions of this paragraph do not apply:] * * * to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof.'

The accident in which the plaintiffs were injured occurred on July 4, 1944. At that time Harris was employed by Leo J. Blumenfield in the latter's garage to do various jobs such as greasing, but he was not a mechanic and was not employed to make major repairs such as the repair of an oil pump. Since July 4 was a holiday, the garage was closed except for parking, and parts and tools used for making repairs were locked up. Bodnar regularly stored his car in Blumenfield's garage and on the day in question he asked Harris, who was then in the garage, to fix his oil pump. Harris agreed and in the course of the conversation said, 'I may have to take this car out to test it to see if the pump works.' To this Bodnar assented. It was agreed that the car would be ready about 4 o'clock in the afternoon. At about half past four, Harris, driving Bodnar's car with a woman passenger, collided with an automobile in which the plaintiffs were riding at a place about a mile from the garage.

The defendant claimed to have proved the following facts: Bodnar had parked his car in Blumenfield's garage for a period of about two years. From time to time he had had repairs made to it by Blumenfield's employees and had been charged for such repairs. On occasions prior to July 4, 1944, he had seen Harris in the garage. On July 4, 1944, the garage was open for business and Harris and two other employees were on duty under pay of Blumenfield. There were tools in the garage which were not locked up. Bodnar had not been told that no employee of Blumenfield would work to repair his car on the holiday.

From the pleadings and the claims of proof, it is apparent that the issues before the jury were whether at the time of the accident the actual operation by Harris of Bodnar's automobile was with the latter's permission and whether, in operating the car, Harris was doing it as the employee of an automobile repair shop or public garage.

The trial court in its charge recognized that these were the issues and at one point flatly instructed the jury: 'If you find that Harris at the time of the accident was using the Bodnar car on an errand or frolic of his own, or if Harris was using the Bodnar car as an employee of the garage owner, Blumenfield, then you cannot find in favor of the plaintiffs and your verdict must be for the defendant.' This, however, followed a rather lengthy passage in which the court indicated to the jury that it was for them to determine whether there was any ambiguity in the provisions of the policy extending coverage to additional insureds and...