Savage v. American Mut. Liability Ins. Co.

Citation182 A.2d 669,158 Me. 259
PartiesEvelyn L. SAVAGE v. AMERICAN MUTUAL LIABILITY INS. CO.
Decision Date16 July 1962
CourtSupreme Judicial Court of Maine (US)

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 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 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. In 1924 a divided court held in Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500, that the original permission to 'go home and change his clothes' and 'to hurry back' extended coverage to the operator even though he used the automobile to travel a different route for the purpose of visiting a number of saloons with friends. In 1941 the Connecticut court, presented with a rather similar factual situation, repudiated the 'initial permission' rule and cited Johnson v. Insurance Co., supra, with apparent approval. Mycek v. Hartford Acc. & Indem. Co., 128 Conn. 140, 20 A.2d 735. The court attempted to distinguish Dickinson as a case involving only 'slight deviations' from the permitted use. Moreover the court expressly declined to follow the leading case of Stovall v. N. Y. Indem. Co., (1928) 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368, although the court in Stovall had relied upon Dickinson as the primary authority for its position. In any event it is now apparent that Connecticut no longer follows the rule of 'initial permission.'

In Tennessee the court has carefully limited the application of the rule of 'initial permission' to those cases in which the operator is given 'general custody' of the vehicle. In Moore v. Liberty Mut. Ins. Co., (1952) 193 Tenn. 519, 246 S.W.2d 960, the court refused to apply the rule previously announced in Stovall to a case in which the permission to use the automobile was limited to a particular purpose. Distinguishing Stovall, the court said at page 961 of 246 S.W.2d: 'The only distinction between the cases is the difference between general custody and a limited permission.' The court apparently attached no significance to the fact that in Stovall permission was limited to use in the business of the employer-owner whereas the vehicle at the time of the accident was actually being used for the personal business and pleasure of the operator. The present state of the law in Tennessee was...

To continue reading

Request your trial
9 cases
  • Concord General Mutual Insurance Company v. Hills
    • United States
    • U.S. District Court — District of Maine
    • June 30, 1972
    ...the time and place of the accident is within the scope of the permission granted by the assured." Savage v. American Mutual Liability Insurance Co., 158 Me. 259, 261, 182 A.2d 669, 670 (1962); Johnson v. American Automobile Insurance Co., 131 Me. 288, 161 A. 496 (1932). Only ten years ago, ......
  • Truck Ins. Exchange v. Hunt
    • United States
    • Missouri Court of Appeals
    • November 21, 1979
    ...use an automobile in town for one and a half hours and the accident occurred at 7:00 p. m. out of town, Savage v. American Mutual Liability Ins. Co., 158 Me. 259, 182 A.2d 669 (1962); and where permission was granted to use an automobile for 15 or 20 minutes during the noon hour and an acci......
  • State Farm Mutual Automobile Insurance Co. v. Linton
    • United States
    • Maine Superior Court
    • November 18, 2010
    ... ... automobile policy with Jonathan Jennings provides liability ... coverage for a motor vehicle collision on October ... vehicle. Mr. Jennings allowed Tina Savage, also an employee ... until June 2007 and defendant ... ¶ 5, 707 A.2d 387, 389; see also State Farm Mut ... Auto. Ins. Co. v. Koshy, 2010 ME 44, ¶ 62, 995 ... A.2d 1012, 1016 n.2 (Me. 1982); American Policy ... holdersIns. Co. v. Cumberland Cold Storage ... ...
  • State Farm Mut. Auto. Ins. Co. v. Estate of Carey
    • United States
    • Maine Supreme Court
    • October 25, 2012
    ...the accident occurred was not within the employer's consent, there was no coverage. Id. at 293, 161 A. 496. [¶ 12] In Savage v. American Mutual Liability Insurance Co., we confirmed Johnson's adoption of the rule “permitting minor deviations”: In Johnson there was a substantial deviation fr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT