Mazdra v. Selective Ins. Co.
| Decision Date | 10 January 1966 |
| Docket Number | No. 2,No. 51261,51261,2 |
| Citation | 398 S.W.2d 841 |
| Parties | Lucy K. MAZDRA, Administrix of the Estate of Richard F. Mazdra, Deceased, Respondent, v. SELECTIVE INSURANCE COMPANY, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Donald Gunn, Donald Gunn, Jr., Hyman G. Stein, Charles Alan Seigel, St. Louis, for respondent.
John D. Schneider, St. Louis, for appellant.
PRITCHARD, Commissioner.
This is a suit in equity to reach and apply bodily injury proceeds of appellant's automobile insurance policy to a judgment for wrongful death of respondent's intestate. Section 379.200, RSMo 1959, V.A.M.S. Separate actions in garnishment against appellant were ordered consolidated with said equity suit upon appellant's motion thereon, and the cases were heard as one according to the trial court's findings, and the judgment, reciting the consolidation, disposes of all issues 'herein joined.' The original default judgment for which appellant is said to be liable under its policy was for the amount of $25,000, and that amount plus interest, $9,375, from the date of rendition thereof, July 24, 1958, to the date of the judgment herein appealed from amounts to a total of $34,375. The original judgment for wrongful death was granted against one Mary I. Hughes, the tort-feasor, who was driving a 1955 Pontiac sedan at the time of the occurrence, April 11, 1956, which resulted in the death of plaintiff's intestate. Appellant's policy of insurance was issued to Noel Wilson, the named insured. Appellant declined to defend the original tort action, and here resists imposition of liability under the policy upon the ground that said Mary I. Hughes was not afforded coverage under the 'omnibus' provision of the policy in that she was not driving the named insured's automobile with his permission, express or implied.
The 'omnibus' provision of appellant's policy extending coverage to others than the named insured is: 'III(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and 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 by the named insured or such spouse or with the permission of either.' (Italics added.) There seems to be no contention that Mary I. Hughes had an express permission from Wilson to drive the Pontiac station wagon on the date of the collision. The issue is, and our review is concerned with, whether or not there was sufficient and substantial evidence adduced from which there exists a legitimate inference of Wilson's permission (i. e., an implied permission) to Mary that she could drive the station wagon. Varble v. Stanley, Mo.App., 306 S.W.2d 662, 667. The evidence conflicts considerably with respect to a course of conduct of Wilson, the named insured, and Mary as it concerns the driving by Mary of the automobile.
Wilson operated an ornamental iron and fire escape fabrication business from his residence, and a shop to the rear thereof, located at 18th and Lynch Streets in St. Louis, Missouri. Prior to the occurrence in question he was separated from his wife, and upon occasions he had the custody of his three minor children in his home. According to witness Willis W. Pearson, who resided just behind Wilson, and who worked for him in welding iron in the shop, Mary was at Wilson's home taking care of the children and acting as his housekeeper. She also would bring telephone messages from the home to the shop, and bring out hot coffee to the men. Pearson testified that he saw Mary driving the subject 1955 Pontiac station wagon in the presence of Wilson. He testified: 'I saw her driving that station wagon ever since he had got it, it was new, she was buzzing around in it practically daily to my knowledge and on several occasions she had used the station wagon and drove us out in the field and picked us up after work.' Pearson testified further that he didn't hear the man (Wilson) tell her that 'here's the keys and take the car,' but he saw her driving during the winter of 1956 and up to April 11, 1956.
A copy of Wilson's statements given appellant's claims investigator attached to its answer as a part thereof (not objected to by respondent) shows that Mary worked for him and at no time had she permission to drive his car; there was no need for her to drive his car in the course of his business; she was employed to look after the office, do typing and answer the telephone when he was away. By a supplemental statement, Wilson stated that on the day of the accident and on all other days on which he was away from 1301 Lynch, he left a set of car keys with Mary Hughes, his employee. The keys were on a ring with his garage keys. He used the garage as a workshop. He left these keys with her in case she had to leave and she could lock up the place when he was gone. The other set of keys was with him on the job the day of the accident. Wilson's deposition given in another case was read in evidence. (Such deposition, although objected to during the trial, is here used by both parties.) Therein Wilson testified that Mary worked for him six months until August or September, 1956. At the time of the accident she was not on his official payroll, but was working, looking after the children and answering the telephone. She was driving the automobile at the time of the accident, and the best he could say about how she happened to be driving it was the fact that she had the keys. Further he testified, 'Q. Now, you had given those to her? A. Well, I laid them on the dresser. Q. On the dresser in the house so that she could taken them? A. So if someone came there to the shop, they could get in. Q. In other words, she was staying with you at that time? A. No, just days. Q. I mean days. A. Yes. Q. She had access to the house, in other words, to the dresser? A. Yes; that's where the 'phone was. See, there's a 'phone in the house; there's a !
Mary I. Hughes, the driver of the Pontiac station wagon, testified that she went to work for Wilson on March 23, 1956, having perviously worked in a tavern as a barmaid where she met Wilson. Her duties were to watch Wilson's children and to take care of the telephone; they did not include driving the car. Prior to April 11, 1956, Wilson gave her permission to drive the station wagon, and she did drive it both with and without his permission. With respect to her statement given appellant's investigators, in which she stated she took the automobile without her employer's permission, she testified further: After the accident Mary continued her employment with Wilson. They were married on October 4, 1957. On cross-examination by respondent she testified: On the day of the collision, Mary took the automobile to the Stork Tavern to visit her friends, and it was on the return trip that the accident happened.
Although it is true, as contended by appellant, and stated in the Varble case, supra, that a person claiming an implied permission from an owner to drive his automobile must prove it, and that no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured, yet such permission may originate in the language or conduct of the named insured. Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605, 608[1-4] ( ). See also 7 Am.Jur.2d Automobile Insurance Sec. 113, p. 425; Annotations: 72 A.L.R. 1398; 126 A.L.R. 550; 160 A.L.R. 1202; 5 A.L.R.2d 610; 7 Appleman, Insurance Law and...
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