Royal Indem. Co. v. H. E. Abbott & Sons, Inc., A-11001

• Decision Date: 09 February 1966
• Docket Number: No. A-11001,A-11001
• Citation: 399 S.W.2d 343
• Parties: ROYAL INDEMNITY COMPANY, Petitioner, v. H. E. ABBOTT & SONS, INC., Respondent.
• Court: Texas Supreme Court

Page 343

399 S.W.2d 343

ROYAL INDEMNITY COMPANY, Petitioner, v. H. E. ABBOTT & SONS, INC., Respondent.

No. A-11001.

Supreme Court of Texas.

Feb. 9, 1966.

Upton, Upton, Griffis, Shannon & Porter, James D. Johnson, San Angelo, with above firm, for petitioner.

Blanks, Thigpin, Logan, Steib & Lewis, S. Ancial Middlebrook, San Angelo, with above firm, for respondent.

WALKER, Justice.

A 1961 pickup truck owned by Jack Herring and driven by George K. Landers ran into and damaged a building owned by plaintiff, H. E. Abbott & Sons, Inc. The truck was covered by a liability insurance policy issued by Royal Indemnity Company to Herring, and the policy contains an omnibus clause extending the coverage to anyone using the vehicle with the permission of the named insured. After recovering judgment against Landers for the damage to the building, plaintiff instituted the present suit against Royal Indemnity Company, defendant, to enforce its alleged liability under the policy.

The case turns upon whether Landers was using the truck with the permission of Herring so as to be an omnibus insured. There is no contention that he had express permission, but the jury found that Landers was operating the vehicle with Herring's implied permission. Judgment was rendered on the verdict in plaintiff's favor, and the Court of Civil Appeals affirmed. 392 S.W.2d 359. In our opinion there is no evidence to support the jury's finding.

On April 18, 1963, Herring employed Landers to work on the former's ranch located some 14 miles northwest of Ballinger. Herring inquired at the time whether Landers had a driver's license, and he did. Landers was paid a monthly salary plus his room and board, and lived in a small house on the ranch. The original arrangement contemplated that he would prepare his meals in the house where he lived, but he soon began taking his meals with the Herring family in the main ranch house. He often prepared his meals there when the Herrings were not at home.

Herring owned three vehicles: a 1955 pickup truck, which was unlicensed and intended for use only on the ranch premises, the 1961 pickup truck, and a passenger car. Landers had permission to drive the 1955 pickup on the ranch. He customarily used it in connection with his work there, and the 1961 pickup was ordinarily driven by Herring. Landers was authorized to use the 1961 truck to perform his duties on the ranch, however, if Herring was not using it and the 1955 pickup was out of repair. When the trucks were not in use, the 1961 pickup was parked behind the Herring house, the 1955 pickup was usually left hear the barn, and the keys were customarily left in both vehicles.

On Saturday afternoon, July 27, 1963, Herring and Landers attended the horse races in Bronte. They made the trip together in one of Herring's vehicles, and Herring did all the driving. Each had two bottles of beer while they were in Bronte, and they returned to the ranch about 3:00 or 4:00 in the afternoon. Later in the afternoon Herring and his family left the ranch and went to Big Spring to spend the night with friends.

Landers had told Herring that he expected a friend, who lived in Abilene and had an automobile, to pick him up at the ranch that evening and drive him to San Angelo, but these plans evidently did not materialize. At about 7:30 o'clock and during the absence of Herring and his family, Landers left the ranch in the 1961 pickup and drove to San Angelo on a personal errand. It was on this trip that he lost control of the vehicle and ran into plaintiff's building. He stopped and drank more beer on the way to San Angelo, and immediately after the accident was arrested and placed in jail but was released upon posting a cash bond, which was forfeited.

Upon learning of the accident the following day, Herring went to see Landers and 'threatened to beat the stuffing out of him,' but Landers talked him out of it. He also told Landers that he might file charges, that 'I believe you know better than that,' and that Landers had 'better not do it again.' Although plaintiff argues to the contrary, we think it is clear from the evidence that these statements had reference to Landers' use of the truck on the previous day. The damage to the pickup was about $400.00, and Landers begged Herring to allow him to stay on the ranch and work it out. Herring later agreed for Landers to remain on those terms, and Landers continued to work on the ranch for about nine months. His relations with Herring were cordial during that period.

On three or four occasions prior to the accident, Landers had driven one of the vehicles off the ranch to pick up the Herring children at a school bus stop some five miles from the ranch house. Part of this distance was over a private road and part over a public highway. These are the only times Landers had driven a vehicle off the ranch, and on each occasion he was expressly instructed by Herring to pick up the children. Herring had never told him not to use the vehicles off the ranch. The subject had not come up. Landers had no car of his own, and Herring always took him to town whenever Landers wanted to go.

Under the standard omnibus clause of an automobile liability policy, an operator is entitled to protection as an additional insured if his use of the vehicle is with either the express or the implied permission of the named insured. While express permission must be affirmatively stated, implied permission may be inferred from a course of conduct or...