Md. Cas. Co v. Hoge
| Decision Date | 09 January 1929 |
| Citation | 149 S.E. 448 |
| Parties | MARYLAND CASUALTY CO. v. HOGE. |
| Court | Virginia Supreme Court |
Error to Law and Chancery Court of City of Roanoke.
Action by William Cecil Hoge, by Nancy S. Hoge, his mother and next friend, against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Sinnott, May & Leaman, of Richmond, and Willis, Adams & Hunter, of Roanoke, for plaintiff in error.
Woodrum, McCauley & Parsons, of Roanoke, for defendant in error.
This is an action in which William Cecil Hoge, an infant, recovered a judgment in the court of law and chancery of the City of Roanoke against the Maryland Casualty Company in the sum of $10,000, and the correctness of the judgment of the trial court is before us for review upon a writ of error duly awarded the insurance company. The action is based upon the following facts, which are practically undisputed, there being very little conflict indeed, in any of the evidence adduced at the trial:
On the 7th day of July, 1927, the Maryland Casualty Company issued a certain liability policy to one R. L. Norwood of Roanoke, Va., covering a Chevrolet coach, which is fully described in the policy. The record shows that Mrs. Catherine Norwood, an adult, wife of R. L, Norwood, occupied the home with her husband in Roanoke, Va. It also discloses that she was in the habit by and with the consent and approval of R. L. Norwood, of driving the Chevrolet coach whenever and whereever she pleased. Indeed, it appears that the car was bought for her special use, and that R. L. Norwood, in addition to the Chevrolet coach, owned a Nash car, which he kept for his own use.
On the 14th day of September, 1927, Catherine Norwood invited Wm. Cecil Hoge, an infant, the defendant in error, to accompany her as a guest in the Chevrolet car above referred to. During the course of the drive, which was confined to the city of Roanoke, there was a collision between the automobile operated by Catherine Norwood and one of the electric cars of the Roanoke Railway & Electric Company. Wm. Cecil Hoge was seriously injured in the collision, and, acting through his mother and next friend, instituted an action for damages against R. L. Norwood, Catherine Norwood, his wife, and the Roanoke Railway & Electric Company. In this action he recovered a judgment of $10,000 against Catherine Norwood alone. This judgment became final, and execution issued thereon which was returned "No effects." Wm. Cecil Hoge, through his mother as next friend, then instituted the present action against the Maryland Casualty Company for recovery of the amount of the policy issued to R. L. Norwood. The verdict and judgment were against the insurance company, and the judgment entered therein by the trial court is before us for review upon this writ of error.
There are ten assignments of error, eight of which get such vitality as they have from the two main assignments:
(1) Whether or not Catherine Norwood had the consent of the owner, R. L. Norwood, to drive the car, as is required by the policy.
(2) That at the time of the accident the use and operation of the automobile by her were unlawful.
These assignments will be discussed, with their relation to others, as we proceed.
The contentions of the defendant in error are that under clause B, section II thereof, 1 ofthe policy, the insurance provided is available to the defendant in error, William Cecil Hoge, who was the guest passenger in the automobile at the time of the accident referred to.
That Catherine Norwood, the adult wife of R. L. Norwood, living in his home at the time, and, as such, "an adult member of the named assured's household, " was covered by the provisions of the policy if she was operating the automobile, even without the specific consent of the assured.
But it is further contended that Catherine Norwood had the specific permission of R. L. Norwood to use and operate the automobile upon the occasion of the happening of the accident.
On the other hand, it is contended by the plaintiff in error:
That at the time of the accident Catherine Norwood was operating the automobile without the consent of R. L. Norwood, the named assured in the policy, and hence that she was not covered by the policy, and that at the time of the accident the use and operation of the automobile by her was unlawful.
It will thus be seen that the case rests upon the clear-cut issues:
First, as to whether Catherine Norwood was driving the car without the consent and permission of the assured; and
Second, whether she was driving the car unlawfully in that sense of unlawfulness which would destroy her alleged right to recover under the policy. It is clear, of course, that the defendant in error cannot recover against the insurance company, unless it is liable to Mrs. Catherine Norwood under the policy.
The trial court adopted the theory of the defendant in error that Catherine Norwood had permission to drive the car, that her failure to secure a permit from the chief of police of the City of Roanoke to operate the car was not admissible in evidence, and that the failure to secure the permit had no bearing upon the right of the defendant in error to recover.
If the trial court was right hi its views, the objection to the instruction given by the court for the defendant in error, the objection to the court's action in refusing to give certain instructions asked for by the plaintiff in error, and the exclusion and admission of certain evidence complained of by the plaintiff in error, all of which form bases for the bills of exception, and are predicated upon the the ory of plaintiff in error of the case, then the case has been correctly decided, and the judgment should be affirmed. The court's action, we think, in giving one instruction2 was based upon undisputed evidence in the case. There was no defense presented by any evidence to the contrary, and therefore it was the duty of the court to instruct the jury upon these undisputed facts and not to theorize as to what the law would be if the facts had been different.
We will therefore discuss the two main points above referred to, namely, as to whether Catherine Norwood had the consent of the assured as a matter of law to use the car, and whether the exclusion of the evidence by the court that she had failed to secure a permit to drive the car was error. A right conclusion upon these points will dispose of the other various assignments of error.
It appears that Catherine Norwood had been in the habit of driving this car for her own pleasure and convenience, with the knowledge and consent of her husband. Indeed, as heretofore stated, the car was purchased for her use. Clearly, if this be true, and there was no revocation of permission of the husband to use the car, this consent was a continuing thing, and the insurance company cannot now claim she was driving the car without authority. It is perfectly clear from the testimony of R. L. Norwood that his wife had his permission and consent to use the car, and that his direction that she take the carhome was only a precautionary one under the circumstances and conditions as they existed at that particular time, and that there was no intention to revoke any general authority his wife had, which was full and complete, to operate the car.
We deem it proper here to set out the testimony of the assured upon the question of the right of Catherine Norwood to use and operate the car in question:
We are referred to a number of cases in the petition for a writ of error and in the brief bearing on the question of the consent of the owner under policies similar to the one now under consideration. Dickinson v. Maryland Casualty Company, 101 Conn. 369; 125 A. S66, 869, 41 A. L. R. 500, presents quite a similar situation so far as the facts are concerned.
In the above case, the Maryland Casualty Company, the appellant in the present case, issued a liability policy identical in language with the policy issued to Norwood, to one Donato Maisano, the owner of a Wescott automobile. Louis Maisano, a brother of Donato, and an adult...
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