Libero v. Lumbermens Mut. Cas. Co.

• Decision Date: 07 July 1954
• Citation: 108 A.2d 533,47 A.L.R.2d 550,141 Conn. 574
• Court: Connecticut Supreme Court
• Parties: , 47 A.L.R.2d 550 LIBERO et al. v. LUMBERMENS MUT. CAS. CO. Supreme Court of Errors of Connecticut

Page 533

108 A.2d 533

141 Conn. 574, 47 A.L.R.2d 550

LIBERO et al. v. LUMBERMENS MUT. CAS. CO.

Supreme Court of Errors of Connecticut.

July 7, 1954.

James R. Greenfield, New Haven, with whom were Vincent P. Dooley, New Haven, and, on the brief, Isadore P. Chaplowe, New Haven, for appellants (plaintiffs).

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

Before INGLIS, C. J., and WYNNE, DALY, SHANNON ^*, and BALDWIN, JJ. INGLIS, Chief Justice.

This action was brought, pursuant to the provisions of § 6191 of the General Statutes, to recover from the defendant, which had issued to George Bodnar an automobile liability policy, the amount of judgments obtained by the plaintiffs against James Harris by reason of his negligent operation of Bodnar's automobile. The court directed a verdict for the defendant and denied a motion to set the verdict aside. From the judgment entered on the verdict the plaintiffs have appealed.

Upon the evidence, the jury might reasonably have found the following facts: By the terms of the policy issued to Bodnar the defendant agreed to save the insured harmless from all liability imposed upon him by law for damages sustained by any person arising out of the operation of his automobile. The policy contained these provisons: 'The unqualified word 'insured' wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured. The insurance with respect to any person or organization other than the named insured does not apply: * * * (c) 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 policy was in force on July 4, 1944.

Leo J. Blumenfield was the owner of a garage in New Haven known as the Commercial Garage. James Harris was employed in the garage to do various jobs such as greasing cars, changing spark plugs and cleaning gas lines, but not to make any major repairs. July 4, 1944, being a holiday, the garage was closed except for parking. The parts and tools used for making repairs were locked up, and Harris, although he was on duty, did not have access to them. Harris' duties on that day were to clean up the mechanical department and the grease pit.

Bodnar kept his car stored in the Commercial Garage. On July 4, 1944, he found Harris at the garage and asked him to fix the oil pump of his car. Harris agreed and in the course of the conversation said, 'I may have to take this car out to test it so see if the pump works.' Bodnar replied, 'I don't know what is supposed to be done, you are the mechanic, and you should do it.' It was agreed that the car would be ready for Bodnar about 4 o'clock in the afternoon. At about half-past four, Harris driving Bodnar's car with a woman passenger, collided with another car about a mile from the garage. As a result of the collision the plaintiffs were injured. On January 14, 1948, they recovered judgments against Harris alone for damages totaling $7262.25. The judgments have not been satisfied.

The court grounded its direction of the verdict and its refusal to set the verdict aside on two conclusions, (1) that at the time of the accident Harris was not operating the car with the permission of Bodnar, the named insured, and (2) that in operating it Harris was the agent of a person conducting an automobile repair shop or public garage and hence came within the exclusionary clause of the policy. Consequently, the question presented on this appeal is whether the jury, on the evidence, were bound as a matter of law to reach either of those conclusions. McWilliams v. American Fidelity Co., 140 Conn. 572, 578, 102 A.2d 345.

As regards the first conclusion, it must be pointed out that the extended coverage of the policy is only to the 'actual use' at the time of the accident with the permission of the named insured. This means that where a car is entrusted to someone other than the named insured for a particular purpose, it must be in use in furtherance of that purpose at the time of the accident in order to come within the terms of the policy. Laroche v. Farm Bureau Mutual Automobile Ins. Co., 335 Pa. 478, 483, 7 A.2d 361; Hubbard v. United States Fidelity & Guaranty Co., 192 Tenn. 210, 217, 240 S.W.2d 245; Hartford Accident & Indemnity Co. v. Peach, 193 Va. 260, 265, 68 S.E.2d 520. In this particular, the provisions of the policy involved in the present case are radically different from those of the policy sued upon in Dickinson v. Maryland Casualty Co., 101 Conn. 369, 379, 125 A. 866, 41 A.L.R. 500.

It is apparent that the jury might have found that Harris had Bodnar's permission to take the car out on the streets and to drive it as far as, in Harris' judgment, was necessary to determine that the oil pump was working properly. Accordingly, the only question on this phase of the case is whether as a matter of law Harris had gone beyond the scope of this permission--whether, in other words, at the time of the accident he was using the car exclusively for some purpose other than testing.

Harris himself did not testify. There was no direct evidence from him as to the nature of his use of the automobile at the time of the collision. There was, however, the evidence that it had been contemplated by him and Bodnar that he would drive the car to test it. There was also evidence that the hour when the accident happened was quite close to the time when he had estimated the work would be completed. From that evidence the jury might have reasonably inferred that Harris' main purpose in driving the car at the time of the accident was to make sure that the oil pump was working properly. The mere fact that he had a woman passenger with him would not necessarily negate such an inference. It follows that there was enough evidence to go to the jury on the question whether the actual use of the car was within the permission given by Bodnar. It was error for the court to decide that question as a matter of law. Mycek v. Hartford Accident & Indemnity Co., 128 Conn. 140, 20 A.2d 735, relied upon by the defendant, is clearly distinguishable. In that case, although the relevant provisions of the policy were substantially the same as those of the policy now before us, the trier had concluded as a matter of fact that the use of the motor vehicle...