State Farm Mut. Auto. Ins. Co. v. Kersey
| Decision Date | 18 November 1960 |
| Docket Number | No. 34791,34791 |
| Citation | 171 Neb. 212,106 N.W.2d 31 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellee, v. Ralph E. KERSEY, Merreta Kersey and Dale O. Beavers, Administrator of the Estate of Gregory Beavers, deceased, et al., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When a proceeding under the Uniform Declaratory Judgments Act involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
2. Whether the record in a civil case shows that a law action was tried to the court without a jury and the record discloses no protest or objection thereto on the part of a litigant, and no application by him for a jury to try the issues, this court will presume that a jury was waived.
3. The findings of a court in a law action in which a jury is waived have the effect of a verdict of a jury and will not be disturbed on appeal unless clearly wrong.
4. In such a case, it is not within the province of this court to resolve conflicts in or to weigh evidence. If there is a conflict in the evidence, this court in reviewing the judgment rendered will presume that controverted facts were decided by the trial court in favor of the successful party and the findings will not be disturbed unless clearly wrong.
5. In considering sufficiency of the evidence to sustain a verdict or judgment rendered by a court in a case where a jury is waived, the evidence must be considered most favorably to the successful party, and controverted fact resolved in his favor, and he must have the benefit of every inference reasonably deducible from the evidence.
6. Where the word 'permission' or 'consent' appears in the omnibus clause of an insurance policy without definition, it is construed to include implied permission, and this implication may be a product of the present or past conduct of the insured.
7. When an insurance policy provides that the insurer will pay reasonable expenses incurred within 1 year from the date of accident for necessary medical, surgical, ambulance, hospital, professional nursing, and funeral expenses for each person who sustains bodily injury, caused by an accident, provided the automobile is being used by the named insured or his spouse if a resident of the household or with the permission of either, and the minor daughter of insured uses the automobile without the implied consent of the insured and an accident occurs resulting in injury to the occupants and the death of one of them; Held, that no liability attaches to the insurer under the provisions of the policy.
Munro, Parker & Munro, Dryden & Jensen, Kearney, for appellants.
Healey, Wilson & Barlow, Lincoln, John E. Dougherty, York, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action brought in the district court for Buffalo County by the State Farm Mutual Automobile Insurance Company, a corporation, as plaintiff, against Ralph E. Kersey, Merreta Kersey, Dale O. Beavers, administrator of the estate of Gregory Beavers, deceased, Mrs. Ralph E. Kersey, first and real name unknown (the record shows that Mrs. Ralph E. Kersey is also known as Jessie Kersey), Joyce Kersey, and James Kersey, minors, defendants. Merreta Kersey, James Kersey, and Joyce Kersey, minors, were represented by a guardian ad litem. The purpose of the action was to obtain a declaratory judgment determining the liability of plaintiff, if any, under the provisions of an insurance policy issued by it to Ralph E. Kersey covering his 1952 Oldsmobile sedan, because of an automobile accident which occurred while Merreta Kersey, a minor daughter of insured Ralph E. Kersey, was driving his automobile, resulting in injuries to Merreta, James, and Joyce Kersey who were riding in the automobile, and causing the death of Gregory Beavers, a minor, who was also riding in said automobile.
This case was tried to the court without a jury. The trial court rendered judgment in favor of the plaintiff and against all of the defendants; that each of the defendants be declared to have no rights, titles, or interest in and to the policy of insurance issued by the plaintiff to the defendant Ralph E. Kersey; that the plaintiff be relieved of the burden and expense of defending Merreta Kersey in an action brought in the district court for Buffalo County wherein Dale O. Beavers, as administrator of the estate of Gregory Beavers, deceased, was plaintiff and Merreta Kersey was defendant; that Dale O. Beavers, as such administrator, be declared to have no rights, titles, or interest in and to the said policy of insurance or its medical coverage provisions as a result of the accident occurring on August 31, 1956; that Ralph E. Kersey or any of the minor defendants be declared to have no rights, titles, or interest under the medical provisions of said policy; and that the plaintiff be relieved therefrom.
The defendants filed an application for special findings of fact. The trial court found that the application should be granted and that the same constituted a part of the journal entry filed in this cause. The trial court found that the defendant Merreta Kersey drove the automobile owned by the defendant Ralph E. Kersey alone on July 4, 1956, in Overton, Nebraska, with the permission of defendant Ralph E. Kersey; that the defendant Merreta Kersey drove the automobile of the defendant Ralph E. Kersey alone, with the permission of Ralph E. Kersey, in Smithfield, Missouri, during the summer of 1955; that the defendant Ralph E. Kersey permitted the defendant Merreta Kersey to drive the automobile on country roads and in the village of Elm Creek, Nebraska, a number of times during the year preceding the accident of August 31, 1956, when the defendant Ralph E. Kersey was with her and gave her driving lessons at said times; that the defendant Merreta Kersey drove the automobile owned by the defendant Ralph E. Kersey back and forth on the family driveway both with and without the express permission of the defendant Ralph E. Kersey, approximately 12 to 15 times prior to the accident; that the defendant Ralph E. Kersey had knowledge that Merreta Kersey was driving the car on the driveway and never objected; that the defendant Ralph E. Kersey did not notify his daughter Merreta Kersey that she was not to drive the car on a country road at the time the accident took place or at any other time; and that the defendant Ralph E. Kersey used his automobile in his business and almost always drove the automobile when he left home.
The trial court further found that neither parent of Merreta Kersey gave permission, directly or by implication, to Merreta Kersey to drive the automobile on August 31, 1956; and that the evidence in the case neither expressly or impliedly gave or granted Merreta Kersey permission to drive said automobile other than in the company of her father.
The defendant Dale O. Beavers, administrator of the estate of Gregory Beavers, deceased, filed a motion for new trial. The defendants F. M. Parker, guardian ad litem for Merreta Kersey, Joyce Kersey, and James Kersey, minors, Ralph E. Kersey, and Jessie Kersey, filed a motion for new trial. The trial court overruled all of the defendants' motions for new trial, and defendants perfected appeal to this court.
It was stipulated by the parties that the plaintiff is a corporation authorized to do business in this state; that Ralph E. Kersey is a resident of Elm Creek, Nebraska, and the father and natural guardian of Merreta, Joyce, and James Kersey, minor children, and that Mrs. Ralph E. Kersey, also known as Jessie Kersey, is the wife of Ralph E. Kersey; that Dale O. Beavers is the administrator of the estate of Gregory Beavers, deceased, pending in the county court of Buffalo County; that the plaintiff, in Nebraska, entered into a policy of insurance with Ralph E. Kersey covering a 1952 Oldsmobile sedan automobile owned by him; that on August 31, 1956, while said automobile was being driven by Merreta Kersey it overturned on a country road north of Elm Creek; that at the time of the accident Joyce Kersey, James Kersey, and Gregory Beavers were riding in said automobile; that it is the contention of Ralph E. Kersey and Merreta Kersey that at the time of the accident Merreta Kersey was driving the automobile with the permission of Ralph E. Kersey and her mother; that as a result of the automobile accident Merreta Kersey, Joyce Kersey, and James Kersey incurred injuries resulting in medical expense in a stated sum; and that the defendant Ralph E. Kersey claims an interest in the policy of insurance under its medical payment coverage for the amount of medical expenses.
It was also stipulated that Gregory Beavers sustained injuries by virtue of the accident which resulted in his instantaneous death and the funeral expense of $500 was paid by Dale O. Beavers personally; and that Merreta Kersey contends that the plaintiff is obligated to defend actions arising out of said accident brought against her.
The plaintiff's amended petition denied that Ralph E. Kersey and Dale O. Beavers had an interest in the insurance policy under its medical payment coverage, or that Dale O. Beavers had an interest in the insurance policy by reason of any obligation of the insurance company to indemnify Merreta Kersey in the event a judgment was rendered against her for damages resulting from the death of Gregory Beavers; further denied that it had an obligation to defend actions arising from the death of Gregory Beavers out of the accident; and further denied that Merreta Kersey was driving the automobile with the permission of Ralph E. Kersey and his wife at the time of the accident.
The answer of the defendants Ralph E. Kersey and his wife, insofar as need be considered, alleged that the Oldsmobile was...
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