Maryland Casualty Co. v. Williams

• Decision Date: 08 November 1950
• Docket Number: No. 13280.,13280.
• Citation: 184 F.2d 983
• Parties: MARYLAND CASUALTY CO. v. WILLIAMS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

184 F.2d 983 (1950)

MARYLAND CASUALTY CO. v. WILLIAMS et al.

No. 13280.

United States Court of Appeals Fifth Circuit.

November 8, 1950.

Jos. W. Popper, Charles J. Bloch, Macon, Ga., for appellant.

Cubbedge Snow, Macon, Ga., for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

Appellees, plaintiffs in the trial Court, as the holders of a judgment unsatisfied, issued in their favor from the City Court of Macon, in a suit against Perry Lewis, instituted suit against appellant, Maryland Casualty Company, seeking recovery of the amount of the judgment upon the claim that Lewis was an additional insured within the terms of a policy of automobile liability insurance issued by appellant to Putzel Electric Company.¹ They sought also recovery of damages and attorney's fees under the provisions of the Georgia statute.² Upon the trial the appellant was found and adjudged liable to appellees for the sum claimed.

Upon review here, the controlling question is presented by an assignment of error asserting the insufficiency of the evidence to sustain the finding, implicit in the verdict and judgment, that Perry Lewis, at the time of the occurrence was using the truck of Putzel Electric Company (the named assured), with its permission within the terms of the insurance agreement referred to above. Upon consideration of the evidence it is clear that the finding to this effect by the jury was amply authorized, and this assignment of error is not meritorious.

The meaning of the policy language is to be ascertained and applied in accordance with the law of Georgia. The meaning and effect of the word "permission," as provided in the policy, received consideration by the Court of Appeals of Georgia in Hodges v. Ocean Accident & Guarantee Corp., 66 Ga.App. 431, 18 S.E.2d 28. It is there stated that the meaning of the term "permission" had not theretofore been ruled on by the appellate courts of Georgia. It seems established by that decision that the requisite permission of use of the insured automobile to invoke liability of the insurer may be either expressed or implied permission. In that decision Judge MacIntyre, as the organ of the Court, rejects the doctrine of "first instance permission" and declares the Georgia rule to be "to the effect that permission means a consent to use the car at the time or place or for a purpose authorized by the insured, express or implied. This third element requires that the purpose for which the car is used at the time of the accident be a purpose stated or intended at the time the bailment is made, but slight deviations are too unimportant to have attached to them by construction the import of annulling the protective features of the policy." This result is reached by consideration "that the unauthorized using of a bailed automobile constitutes a conversion," which is utterly incompatible with permission. It is manifest that in any application of this rule the breadth or restriction of authority given as to detail of manner and purpose of use is entitled to weighty consideration.³ The difference in the result of a use expressly prohibited, or detailed direction in which to be enjoyed, and a use for a purpose generally, without express direction or restriction, is clear, for "permission to use a car may be implied in the absence of express prohibition.⁴" These considerations must equally apply to each of the elements of time or place or purpose of permitted use, and consequently, except in clear cases, the question of whether the automobile is being permissively used at the time of the event giving rise to claimed liability is a question of fact to be determined by the jury.

Consideration of the facts and circumstances disclosed by the present record, in the light of the principles stated, affirm the correctness of the trial Court's action in submitting to the jury determination of the questions of fact involved and furnish sufficient evidence to support the verdict. Without attempting full recitation of the facts, we advert to only some of the highlights, and these briefly. Much of the testimony related to the most direct route from the store in downtown Macon, Georgia, to the home of Perry Lewis. Perry Lewis was, during his regular employment workweek, a truck driver for this company, by whom he had been...