Savage v. American Mut. Liability Ins. Co.

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: Before WILLIAMSON; WEBBER
• Citation: 182 A.2d 669,158 Me. 259
• Decision Date: 16 July 1962
• Parties: Evelyn L. SAVAGE v. AMERICAN MUTUAL LIABILITY INS. CO.

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182 A.2d 669 158 Me. 259 Evelyn L. SAVAGE
v.
AMERICAN MUTUAL LIABILITY INS. CO. Supreme Judicial Court of Maine. July 16, 1962.

[158 Me. 260] Basil A. Latty, Portland, for plaintiff.

Mahoney, Thomes, Desmond & Mahoney, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, SULLIVAN and SIDDALL, JJ.

WEBBER, Justice.

The plaintiff, holder of a judgment against one Margaret MacKenzie, now seeks to compel the payment of this judgment by the defendant insurance company. The defendant provided liability insurance

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on the automobile of one Jensen which was being operated by Miss MacKenzie at the time the plaintiff was injured. The issue is whether or not the operation was with the permission of the named assured within the meaning of the policy contract.

The pertinent provision of the policy states:

'With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured * * * and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.' (Emphasis ours.)

The justice below found on the basis of supporting evidence that Miss MacKenzie was given permission by the insured to borrow the latter's automobile; that the stated purpose was the transaction of some personal business by [158 Me. 261] Miss MacKenzie in Westbrook; that the car was borrowed not later than 9:30 A. M. at the owner's home in Westbrook upon the understanding that it would be returned in not over an hour and a half; and that the plaintiff was injured while riding as a passenger in the car being then driven by Miss MacKenzie at about 7 P.M. on a highway several miles from the owner's home. No effort was made by the plaintiff to explain why the car should have been used for the entire day or why it should have been at the place where the accident occurred. The personal business to be transacted by the operator was such that it could have been transacted in a relatively brief period.

Relying on the authority of Johnson v. American Automobile Insurance Company, 131 Me. 288, 161 A. 496, the justice below denied recovery. In that case we held that coverage extends to the operator only if his use at the time and place of the accident is within the scope of the permission granted by the assured. In effect the plaintiff urges that we reconsider the rule announced in Johnson and adopt the rule of 'initial permission' which obtains in a few jurisdictions. The plaintiff contends that since Miss MacKenzie had permission to take and use the car in the first instance, she should be deemed to be covered by insurance even though at the time of the accident her use was for a purpose and at a time and place which represented a drastic deviation from that for which permission was originally granted.

In Johnson we reviewed some of the leading cases which support the 'initial permission' rule and indicated that they were 'not persuasive.' It is interesting to note that since Johnson was decided in 1932, two of these cases have been virtually repudiated....