Peterson v. Maloney

Decision Date07 November 1930
Docket NumberNo. 28091.,28091.
Citation232 N.W. 790,181 Minn. 437
CourtMinnesota Supreme Court

Appeal from District Court, Ramsey County; G. M. Orr, Judge.

Action by Alice Peterson, as administratrix of the estate of George Peterson, deceased, against Gerald J. Maloney and another, defendants, and Maryland Casualty Company, garnishee. From an adverse judgment, the garnishee appeals.


Barrows, Stewart, Jackson & Junkin, of St. Paul, for appellant.

Orr, Stark, Kidder & Freeman, of St. Paul, for respondent.


The Maryland Casualty Company appeals from the judgment entered against it as garnishee in the action.

Plaintiff's husband, George Peterson, was killed in an automobile accident. Plaintiff, as administratrix of his estate, brought suit against Gerald J. Maloney, the driver of the car, a small truck, involved in the accident, and against the White Bear Yacht Club, the owner of the car, to recover damages for the death of her intestate, claimed to have been caused by negligence on the part of Maloney in operating the car. She recovered judgment against Maloney, but failed to recover against the White Bear Yacht Club. The Maryland Casualty Company, hereinafter referred to as the company, is the insurer of the Yacht Club under an accident insurance policy on the car in question. Plaintiff garnished the company, and, upon supplemental pleadings, its liability was tried before the court and plaintiff recovered judgment.

Two main questions are presented by the appeal: (1) Whether, at the time of the accident, Maloney, the driver of the car, was covered by the terms of the insurance policy issued to the Yacht Club by the company; (2) whether the company, by assuming the defense of Maloney in the main action, and by certain representations made to him, is now estopped to deny that he was covered and protected by the terms of the policy. The trial court found in plaintiff's favor on both of these issues. If the evidence sustains the court's findings on either question, the decision and judgment must stand.

1. The court found as facts that, at the time of the accident, Gerald J. Maloney was a servant and agent of the White Bear Yacht Club, but that the car was not then being operated in the course, nor within the scope, of his employment. The finding that Maloney was at the time an employee of the Yacht Club is challenged. While not decisive of any issue on this appeal, we find the evidence sufficient to sustain the findings. The Yacht Club had and operated a golf course for its members. It owned and used in that activity the small truck involved in this accident. It employed one Mr Vardon, who had charge of the golf grounds, gave lessons, had certain concessions, and had charge of the business. Maloney was employed as an assistant to Vardon, to take care of the golf grounds, do sodding and repairs on the course, and repair golf clubs. While at one place in the record Maloney testified that he was employed by Vardon, the reasonable inference, nothing to the contrary appearing, is that Vardon, as manager of the golf activity, hired Maloney for the Yacht Club, as its employee.

2. The coverage clause in the policy of insurance here in question provides: "The insurance provided by this Policy is hereby made available, in the same manner and under the same conditions as it is available to the named Assured, to any person operating, and/or to any other person while riding in, and/or to any other person, firm or corporation legally responsible for the operation of any of the automobiles described in the Statements, provided the use and operation thereof are lawful and with the permission of the named Assured." The court found as facts that, at the time of the accident, Maloney was operating the car with the permission of the White Bear Yacht Club; that the use and operation thereof by him were lawful, and that the operation thereof came within the coverage provision of the insurance policy above set forth. In its conclusions of law, the court held that Maloney was covered by the terms of the insurance policy as to this accident. These findings and conclusions are challenged as not justified or sustained by the evidence. The specific question raised is that the evidence is insufficient to justify a finding that Maloney was using the car with the permission of the named assured, the White Bear Yacht Club, so as to come within the coverage provision of the policy. Vardon was in charge of the golf grounds and the golf business of the Yacht Club. The car was furnished for use in that business and was under Vardon's control. He acted as the representative of the Yacht Club in the matter. Maloney was his assistant. On two prior occasions Maloney had used the car for his own personal convenience after working hours. On each of these occasions he asked Vardon if he could use the car to go to see his mother and his doctor, and Vardon said "yes." He then used the car for trips to St. Paul and North St. Paul to see his doctor and to visit his mother. On the evening of the accident, he again asked Vardon for permission to use the car to go to see his doctor and his mother, and Vardon said "yes." On that evening in question, however, Maloney, after having received permission to use the car, did not start out on his trip until too late to go to see his doctor or his mother, and used the car for other purposes. At the time of the accident he was driving into the city of St. Paul, some twelve miles from his place of employment, for personal purposes of his own. He was on his way to St. Paul, where his doctor had his office, and was traveling the route he would go to the doctor's office, but, as it was then in the middle of the night and the doctor's office closed, he had no intention of going to see the doctor. The question whether he was using the car with the permission of the assured under the terms of the insurance policy is perhaps close. Not much authority either way is found upon the precise question.

The insurance under the policy here, and under policies generally used in this state, is liability rather than indemnity insurance. Hence, under our practice, a plaintiff...

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