Persellin v. State Auto. Ins. Ass'n
| Citation | 75 N.D. 716,32 N.W.2d 644 |
| Decision Date | 05 June 1948 |
| Docket Number | No. 7079.,7079. |
| Parties | PERSELLIN v. STATE AUTOMOBILE INS. ASS'N. |
| Court | North Dakota Supreme Court |
PERSELLIN
v.
STATE AUTOMOBILE INS. ASS'N.
No. 7079.
Supreme Court of North Dakota.
April 15, 1948.
Rehearing Denied June 5, 1948.
Appeal from District Court, Cass County; John C. Pollock, Judge.
Action by Maurice Persellin against the State Automobile Insurance Association for damages as an additional insured within a liability policy. From the judgment, plaintiff appeals.
Reversed with directions.
On Petition for Rehearing.
1. A person, using an automobile to entertain friends and transport them from place to place, who turns over manual operation of the automobile to one of his guests but remains in the automobile with full power of control over its use, continues to be the person using such automobile.
2. The evidence in the case is examined and it is held for the reasons stated in the opinion that the use of an automobile by the named insured's employee for purposes of pleasure was a use permitted by the named insured within the provisions and effect of the ‘omnibus clause’ of his insurance policy.
3. Where an ‘omnibus clause’ in an insurance policy states that the word insured ‘includes any person while using the automobile and any person or organization responsible for the use thereof, provided that the actual use of the automobile is with the permission of the named insured,’ a person who assists the user of the automobile in a permitted use, by taking over the manual operation of the car, is an insured person within the meaning and effect of such ‘omnibus clause.’
[32 N.W.2d 645]
Lanier & Lanier and E. M. Stern, all of Fargo, for plaintiff and appellant.
Day, Lunberg & Stokes, of Grand Forks, for defendant and respondent.
BURKE, Judge.
In this action plaintiff sought to recover damages, as an additional insured within the provisions of an ‘omnibus clause’ contained in a policy of automobile insurance, issued by the defendant insurance company to Fleix Farrar of Fargo. The defendant denied that plaintiff was included within the definition of an insured person contained in such ‘omnibus clause’. The case was tried to the court without a jury and a judgment for the defendant was granted and entered. Plaintiff has appealed from the judgment.
Felix Farrar is engaged in a merchandising business at Fargo, N. D. Sometime in the early part of May 1944, he employed Maurice Shapiro as a salesman. At the time of employment he agreed to furnish Shapiro with a car ‘to go out and do some business.’ Farrar testified, ‘the only thing I told him, that I would buy him a car and he had to take care of it.’ Thereafter the car, a 1938 Chevrolet, was purchased by Farrar and turned over to Shapiro. Farrar retained title to the car but Shapiro thereafter had uninterrupted possession and assumed full liability for the cost of its maintenance and repair. On May 15, 1944, the defendant issued to Farrar, for a period of one year, a policy of automobile liability insurance, by which it agreed, under Coverage A, to pay to the insured ‘all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.’ Item 5 of the policy provided: ‘The...
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