MFA Ins. Companies v. Mendenhall

• Decision Date: 05 February 1980
• Docket Number: No. 42509,42509
• Citation: 205 Neb. 430,288 N.W.2d 270
• Parties: MFA INSURANCE COMPANIES, Appellant, v. John L. MENDENHALL et al., Appellees.
• Court: Nebraska Supreme Court

Page 270

288 N.W.2d 270

205 Neb. 430

MFA INSURANCE COMPANIES, Appellant, v. John L. MENDENHALL et al., Appellees.

No. 42509.

Supreme Court of Nebraska.

Feb. 5, 1980.

Syllabus by the Court

1. Declaratory Judgments: Statutes. An action for declaratory judgment brought under section 25-21,149 et seq., R.R.S.1943, which involves a question of fact, entitles the parties to a jury trial.

2. Trial: Juries: Waiver. Where the record indicates that a case was tried to the court without a jury and there is no indication of protest or objection on the part of either litigant, it will be presumed that a jury was waived.

3. Declaratory Judgments: Verdicts: Appeal and Error. A judgment on a fact issue tried to the court alone has the effect of a verdict of a jury and will not be set aside unless clearly wrong.

4. Insurance: Motor Vehicles: Words and Phrases. Permission as used in the standard automobile insurance policy is not limited to that expressly granted, but may arise and be implied from a course of conduct pursued with knowledge of the facts for a considerable time, as where there is a prolonged, frequent, and habitual use with the knowledge and acquiescence of the owner.

5. Insurance: Motor Vehicles: Words and Phrases. Express permission granted for limited specific purposes on isolated occasions does not imply general permission to use an automobile for purposes wholly unrelated in time, character, or circumstances.

6. Insurance: Motor Vehicles: Words and Phrases. Implied permission to use an automobile arises from a course of conduct indicating mutual acquiescence or lack of objection under circumstances signifying assent.

Harold W. Kauffman and William J. Dunn of Gross, Welch, Vinardi, Kauffman, Day & Langdon, Omaha, for appellant.

Harry R. Henatsch of Katskee & Henatsch, Omaha, for appellees West American Ins. Co.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

This is a suit for a declaratory judgment. The plaintiff, MFA Insurance Companies (MFA), seeks a determination as to whether or not its policy of automobile liability insurance issued to Janet T. Peery (Janet) on her 1974 Volkswagen extended to cover her sister, the defendant Sharon Peery (Sharon), as an additional insured while the latter was operating the automobile on February 24, 1978. At that time Sharon became involved in an accident in which Mendenhall, Joseph P. Menichetti, and West American Insurance Company, Mendenhall's collision carrier (defendants), sustained damages. The trial court found that MFA's policy did provide Sharon with liability insurance coverage as an insured under its omnibus clause. Plaintiff has appealed and we reverse.

Although a suit for declaratory judgment under section 25-21,149 et seq., R.R.S.1943, is an action sui generis and may involve questions of both law and equity, the particular decision from which this appeal is taken involves at the outset a question of fact. As such, the parties were entitled to a jury trial. § 25-21,157, R.R.S.1943. State Farm Mutual Automobile Ins. Co. v. Kersey, 171 Neb. 212, 106 N.W.2d 31 (1960). However, the record indicates that this case was tried to the court without a jury and where, as here, there is no indication of protest or objection on the part of either litigant, the court will presume that a jury was waived. State Farm Mutual Automobile Ins. Co. v. Kersey, supra. In such a case, the judgment of the trial court has the effect of a verdict of a jury and will not be set aside unless clearly wrong. State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 207 N.W.2d 364 (1973).

The evidence at trial consisted of the policy of insurance and the depositions of Janet and Sharon taken by the attorneys for the defendant, West American Insurance Company. The pertinent portion of the policy involved in this litigation is as follows: "With respect to the insurance afforded * * * the following are insureds: * * * any * * * person using such automobile with the permission of the named insured * * * provided his actual operation * * * is within the scope of such permission * * *."

Janet testified she is now single, has a small daughter, owns the automobile in question, and lives about 2 or 3 miles from her sister Sharon. Sharon is 26 years old, single, and the two are friendly and socialize with each other. Prior to February 24, 1978, Janet had let Sharon practice her driving with Janet's car as long as she also was in the car. She said Sharon did not practice driving with Janet's car when she was not along. Janet picked up Sharon on occasions to take her different places, including grocery and clothing shopping, and to see their other sisters. Sharon did not do any of the driving on those occasions that Janet could remember. Janet did not remember any occasion before the accident when she let Sharon take the car for her own use when she was not along. The day before the accident Janet had taken her daughter to Sharon's house to leave her because Janet was going out of town for the weekend. Janet had given Sharon her keys to the house in case Sharon had to get the little girl some clothes or something from the house. All of her keys, including the car keys, were on the same ring. She had left her car parked in front of her house, and then left on her trip with friends.

Janet thought she and Sharon had discussed whether or not Sharon could use the car while Janet was gone. She didn't say what was said, but did testify that before this time she had specifically told Sharon when she had asked to use the car that she could not do so. She said that before February 24, 1978, she had never allowed Sharon to take the car by herself and drive it. When pressed for a reason why she wouldn't let Sharon drive, she said "I just didn't want her to drive it." Janet had let her other sister, Barbara, drive the car whenever Barbara asked, but to the best of her knowledge whenever Barbara had the car Sharon never drove it. Janet finally said that if they would have discussed Sharon's using the car while she was gone she would have told Sharon no, she couldn't use it. "It's, you know, with her, with her driving in the car with me before I just felt that I didn't want her to drive the car without me in it. That's all. It was a personal matter before me and her."

According to Sharon's deposition, she had driven Janet's car on several occasions before the accident, but only with Janet or her sister Barbara in the car. These would be short trips to the doctor's office or to the nearby shopping center. The greatest distance she had ever driven the car by herself was the night of the accident when she took the car to go to a show. In answer to a question, "Well, were there shorter drives by yourself when you were all alone?" she answered, "Maybe to the drugstore and back, but that's like in Baker's shopping center, but that was about it." She was then asked, "Did that pattern of driving that you told us about, did that continue from June of '77 until the date of this accident?" to which she replied, "No. I didn't drive that much with the car, but I did just go, like we were just talking, like maybe to the store and drugstore, this and that." And a further question, "It was just the short trips?" and the answer "Yes. She wouldn't let me go anywhere, just if we were going to the store, the drugstore, that was about it. Most of the time I would drive or she or my sister Barbara, but no other trips." Finally, in this area, the following questions and answers were asked and given: "Q. Well, had you taken the Volkswagen alone, Sharon, to go get groceries at Baker's or Hinky Dinky prior to this accident? A. No. Janet would come and get me and we would go together. Q. The drugstore would be the only exception? A. Yes. Q. Where you would take it alone? A. Yes."

In describing the events leading up to the accident, Sharon told how Janet had brought her little girl Leslie over to her house. "* * * And she brought her Thursday evening over to my house, and she left her car at her house, but I had the keys to the house and the car, so I could go check on the house. So Friday evening I came home from work and I had a friend take me over to Janet's house and I picked up the car from there. Then I went to the show from there, and that was about four-thirty or five o'clock that evening."

When questioned about whether or not there was any discussion between her and Janet about using the car on this occasion, she said, "No. Only that not to use the car. * * * Q. Are you sure she talked to you about that? A. Well, usually Q. But it's not 'usually' I'm asking about, I'm asking about this particular evening? A. Yes. * * * I don't remember if we discussed it, but she left her car at the house and she just told me to check on the house. * * * The car, we didn't discuss anything about the car, but I just took it as not to use the car because it was parked in front of her house." Then continuing, "Q. Well, on those occasions when you would drive it alone to the drugstore, would it not be parked at her house then? A. No, she would come and bring the car to me. * * * Then I would drive from my house to her house and then I would go to the drugstore and bring the car back to her house and she would take me back home." Sharon went on to testify that this happened once a month or less when she would drive the car to the drugstore by herself to get her insulin. She could remember only one occasion when she drove to the doctor's office by herself.

On cross-examination by the attorney for the other defendants, Sharon testified for the first time that although this was the first time she had ever taken the car without permission, she assumed Janet would not care. Later on she said, "I still can't remember if we talked about it or not. But the car was parked at her house and that, from that understanding I got that I wasn't supposed to use the car, just to check...