McKee v. Travelers Ins. Co., s. 29756
| Citation | 315 S.W.2d 852 |
| Decision Date | 02 September 1958 |
| Docket Number | Nos. 29756,29757,s. 29756 |
| Parties | Birdie McKEE, by her next friend, Laura B. Burton (Plaintiff), Appellant, v. TRAVELERS INSURANCE COMPANY, a corporation (Defendant), Respondent, and William Strickland (Defendant), Appellant. |
| Court | Court of Appeal of Missouri (US) |
Henry Espy, S. R. Redmond, St. Louis, for plaintiff-appellant.
Rosenblum & Goldenhersh, St. Louis, for defendant-appellant.
Hocker, Goodwin & MacGreevy, John M. Goodwin, Wayne L. Millsap, St. Louis, Harold B. Bamburg, St. Louis, of counsel, for defendant-respondent.
DOERNER, Commissioner.
This is an action in equity as authorized by Section 379.200 RSMo 1949, V.A.M.S., in which the plaintiff, Birdie McKee, a minor, by her next friend, seeks to compel the defendant Travelers Insurance Company to pay and satisfy a judgment for $2,000 which she had obtained against the defendant Strickland on June 5, 1956, in the Circuit Court of the City of St. Louis.
The accident which gave rise to the suit resulting in the judgment against Strickland occurred on June 5, 1955, at or near the intersection of Kingshighway and Page Avenue in the City of St. Louis when a truck driven by the defendant Strickland and owned by the Kortkamp Bros. Moving and Storage Company, a corporation, struck and injured the plaintiff. In her action for damages the plaintiff named the Kortkamp Company and Strickland as defendants but the jury returned a verdict against Strickland alone, and in favor of the Kortkamp Company.
After her judgment against Strickland had become final plaintiff instituted this action in equity against Strickland and the Travelers Insurance Company, which had issued a policy of liability insurance indemnifying the named insured, Kortkamp Bros. Moving and Storage Company, against claims for bodily injuries arising out of accidents occurring in the operation of its trucks. There is no dispute that this policy was in full force and effect at the time of the accident in which plaintiff was injured, and that the coverage extended to the particular truck involved in the accident. The basic question is whether, under the terms of the policy, coverage extended to Strickland so that the Insurance Company became obligated to pay the judgment plaintiff had obtained against him. On his part, Strickland filed a cross-claim against the defendant Travelers in which he sought recompense for the counsel fees and other expenses for which he had become obligated in defending against this suit. Judgment below was in favor of defendant Travelers Insurance Company on both the plaintiff's claim and defendant Strickland's cross-claim, and both plaintiff and defendant Strickland have appealed.
Strickland, for about six years preceding the accident, had been employed by the Kortkamp Company as a truck driver, helper, warehouseman, office boy, and general handyman, but at the time of the accident, which occurred about 11:20 p. m. on a Sunday evening, he was returning to his home from his father's house. The evidence showed that sometime earlier that night Strickland's father, who was paralyzed, had fallen out of bed, that his sister had telephoned him, and that he had gone to his father's house to help his sister put their father back in bed.
As part of his duties Strickland was required to report at the Kortkamp Company's place of business about a half hour before the other employees arrived in order to open it up. According to Oliver N. Kortkamp, President of the company, he permitted Strickland to use the truck to go back and forth from his home to the company's offices for a number of reasons--because Strickland was required to get to the office early to open up; because it was inconvenient for Strickland to get to public transportation near his home; because Strickland was in the habit of getting in late and the use of the truck gave him more time; and to save Strickland the cost of a streetcar pass. The witness testified categorically that at the time he informed Strickland he could use the truck to go back and forth from his home he told Strickland that the latter was not to use the truck for any purpose of his own; that from time to time he checked up on Strickland by driving past the latter's home in the evening to see whether the truck was there, and that on each occasion it was parked there; and that he never knew of Strickland to use the truck for his own purpose.
Essentially, Strickland's testimony regarding the authority given him to use the truck did not vary substantially from that given by Kortkamp. He testified that he was permitted to take the truck and keep it over night at his house because he opened up the place of business in the morning, because he lived in an out-of-the-way place, and so that he wouldn't have to buy a streetcar pass; and he admitted that Kortkamp told him he didn't want him to do any jobs or 'pleasure-riding' with it, which Strickland, who had not gone beyond the eighth grade, understood to mean getting drunk, riding women around, or doing a job for himself.
As stated, the named insured in the policy involved in this case was Kortkamp Bros. Moving and Storage Company. By its terms the policy provided that:
'The unqualified word 'insured' includes the named insured and also includes, under divisions 1 and 2 of the Definition of Hazards, 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 with his permission, and under division 3 of the Definition of Hazards, any executive officer of the named insured.'
This provision in automobile indemnity policies is commonly referred to as the 'omnibus' clause.
In developing the extent of Strickland's use of the truck in question testimony was given by both Strickland and Kortkamp that on week-ends during certain months of the year, at Kortkamp's request, Strickland would go to Kortkamp's home, located on Highway 66 in St. Louis County, to plow and do other odd jobs. On each of such occasions Strickland used the truck to go to and fro, with Kortkamp's knowledge but without any express authority having been given him to do so. An effort was also made by appellants to show that Strickland occasionally used the truck to go to the grocery store and barber shop, but in our opinion the evidence also showed that neither Kortkamp nor anyone else in authority at the Kortkamp Company had either authorized or had any knowledge of such a practice, except possibly as to one instance when Strickland had stopped at a grocery store on his way home from work and the truck was sideswiped by a passing car. Although Strickland's testimony as to Kortkamp's reaction to this occurrence is not as clear as might be desired, enough appears in the record to indicate that when Kortkamp learned of that accident he instructed Strickland not to use the truck for such purposes or take such chances of being hit.
While it is true, as said in Varble v. Stanley, Mo.App., 306 S.W.2d 662, that the permission provided in the omnibus clause can be either express or implied from the conduct of those in a position to give it, the evidence in this case, in our opinion, falls far short of showing any knowledge--much less any acquiescence--on the part of Kortkamp or his company as to the use of the truck by Strickland for his own personal pleasure or purposes. And without knowledge by Kortkamp or his company that Strickland was using the truck for his own purposes, no permission could be implied. Varble v. Stanley, supra.
But appellants' principal contention is not based on the issue of Strickland's implied permission to use the truck for his own purposes by reason of the Kortkamp Company's knowledge of and acquiescence in such use. Their primary contention is that since Strickland was initially given permission by the named insured, the Kortkamp Company, to use the truck to go to and from work, any subsequent use of the automobile by Strickland, for whatever purpose, should be deemed to be with the named insured's permission, in order to permit a recovery under the omnibus clause.
The parties are in agreement that no Missouri case precisely in point on the facts has been decided by an appellate court of this state, and in their excellent briefs, which have been of great aid to the court, both quote liberally from an exhaustive article on the subject in 5 A.L.R.2d 600, and from cases cited therein. As developed in that article, the decisions disclose three lines of authority dealing with the construction of the word 'permission' in an omibus clause as applied to an employee-driver of an automobile. The first view, claimed by appellants to have been adopted by a majority of jurisdictions, is the so-called initial permission or liberal rule under which the employee need only to have received permission to take the vehicle in the first instance, and any use while it remains in his possession is said to have been with the permission of the named insured, though the particular use at the time of the accident may not have been within the contemplation of the named insured when he parted with the possession of the vehicle. See Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368; Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500; Drewek v. Milwaukee Automobile Insurance Co., 207 Wis. 445, 240 N.W. 881; Konrad v. Hartford Accident & Indemity Co., 11 Ill.App.2d 503, 137 N.E.2d 855.
Under the second rule, known as the strict or conversion rule, for the use of the vehicle to be within the omnibus clause the permission given to the employee must extend, not only to the initial use of the vehicle, but also to the particular use being made of the car at the time of the accident. Johnson v. American Automobile Ins. Co., 131 Me. 288, 161 A. 496; Gray v. Sawatzki, 291 Mich. 491, 289 N.W. 227; Travelers Ins. Co. v. Marcoux, 91 N.H. 450, 21 A.2d 161....
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