State Farm Mut. Auto. Ins. Co. v. American Cas. Co. of Reading, Pa.
| Decision Date | 01 March 1966 |
| Docket Number | No. 12482,12482 |
| Citation | 146 S.E.2d 842,150 W.Va. 435 |
| Court | West Virginia Supreme Court |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA. |
Syllabus by the Court
1. The general rule that an appellate court will accord weight to findings of fact made by the trial court will not be applied with its usual force when the testimony of witnesses upon which the findings of fact were based was not heard ore tenus by the trial court.
2. General rules relating to the burden of proof apply in declaratory judgment actions.
3. In an action in which a plaintiff seeks recovery from an insurer on the basis of the omnibus clause of an automobile liability insurance policy which provides that a person using the automobile covered by the policy shall be deemed to be an insured, 'providing the actual use thereof is with the permission of the named insured,' the action being based on the contention that the person who was driving the automobile at the time of the accident which is alleged to have given rise to the cause of action was an insured within the meaning of the omnibus clause, the burden is on the plaintiff to prove that such driver was at that time using the automobile with the permission of the named insured; and, in the absence of proof of an express permission, the burden is on the plaintiff to prove facts and circumstances from which it may reasonably be implied that the driver was, at the time in question, using the automobile with the permission of the named insured.
Jackson, Kelly, Holt & O'Farrell, William T. O'Farrell, Ediwn B. Brown, Charleston, for appellant.
Kay, Casto & Chaney, Edward H. Tiley, Ralph C. Dusic, Jr., Charleston, for appellee.
This case, on appeal from a final judgment of the Circuit Court of Kanawha County, involves primarily the question whether the driver of an automobile, at the time it was involved in an accident, was using the automobile with the permission of the owner who was the 'mamed insured' within the meaning of the 'omnibus clause' of an automobile liability insurance policy. There was no express permission and so, stated more precisely, the question is whether the factual circumstances warrant the trial court's finding of implied permission.
The case in the trial court involved a declaratory judgment action instituted in that court by State Farm Mutual Automobile insurance Company, a corporation (which will be referred to in this opinion as State Farm), against American Casualty Company of Reading, Pennsylvania, a corporation (which will be referred to in this opinion as american Casualty), and R. E. Clark. R. E. Clark was American Casualty's insured.
On the evening of July 27, 1962, R. E. Clark gave permission to his son, James Clark, to use his automobile. James Clark, in company with Paul Jefferson, Jr., and a third boy named Richard McCullough, drove the automobile to the Mantiki Club on U. S. Route 60 in Charleston, Kanawha County. At that time and place James Clark turned the automobile over to Paul jefferson, Jr., in order that the latter might drive the automobile to a service station to purchase gasoline for the automobile. In the meantime, James Clark and Richard McCullough went into the Mantiki Club. While the Clark automobile was being driven by Paul Jefferson, Jr., for the purpose of obtaining gasoline, it was involved in a collision with an automobile owned by Carl Walker, in which he was a passenger, while the automobile was being operated by his wife, Retta Walker.
As a consequence of the accident involving the two automobiles, the Walkers instituted in the Court of Common Pleas of Kanawha County, a civil action for recovery of damages. During the course of the trial R. E. Clark and James Clark were dismissed as defendants and the case proceeded to verdicts and judgments against Paul Jefferson, Jr. The verdict in favor of Retta Walker was for $4,000 and the verdict in favor of Carl Walker was for $2,000. State Farm defended Paul Jefferson, Jr., in the civil action under the terms of the policy it had formerly issued to paul Jefferson, Sr. The judgments entered on the verdicts were later paid by State Farm on the basis of a $5,000 settlement.
In the declaratory judgment action thereafter instituted by State Farm Against American Casualty and R. E. Clark, State Farm requested the trial court (1) to declare its rights in relation to both insurance policies; (2) to declare that American Casualty was primarily liable for damages which resulted to the Walkers as a consequence of the automobile accident; and (3) that the court enter judgment in favor of State Farm against American Casualty for $5,000, plus interest, costs and reasonable attorney fees incurred by State Farm in defending Paul Jefferson, Jr., in the civil action for recovery of damages.
The declaratory judgment action was submitted to the trial court for decision upon the complaint, an answer, sample copies of the two insurance policies and certain pertinent testimony which had been adduced in the previous action instituted by the Walkers for recovery of damages. The circuit court held in the declaratory judgment action that Paul Jefferson, Jr., at the time the accident occurred, was operating the automobile with the implied permission of R. E. Clark, owner of the automobile and the named insured in the policy issued to him by American Casualty; that, as between the two insurers, American Casualty was primarily liable for damages caused to the Walkers by the accident; and, accordingly, the circuit court entered judgment in favor of State Farm against American Casualty for the sum of $5,000, plus interest, costs and attorney fees in the sum of $1,600.06. Counsel for American Casualty made a motion to the court to amend certain of its findings of fact and conclusions of law or, in the alternative, to grant a new trial. From an order of the circuit court overruling the motion, American Casualty has been granted the appeal to this Court.
It is agreed by counsel in briefs and oral argument that the issue presented on the appeal to this Court is whether, at the time the automobile accident occurred, Paul Jefferson, Jr., was operating the automobile with the implied permission of R. E. Clark, owner of the automobile and the 'named insured' in the insurance policy issued to him by American Casualty. It is agreed also that the pertinent portion of the American Casualty policy is the 'omnibus clause' contained in the following language:
'(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured; * * *.' (Italics supplied.)
The record contains testimony of only three witnesses: R. E. Clark, James B. Clark and Paul Jefferson, Jr. There appears to be no substantial controversy concerning the facts and circumstances bearing upon the issue of implied permission. Apparently there was a close, friendly relationship between the Clark family and the Jefferson family, particularly between the two sons who are involved in this case. The Clark automobile was used quite generally for family purposes.
R. E. Clark, the named insured, testified that his son had used the automobile theretofore if nobody else was using it, apparently on numerous occasions, but by asking and obtaining permission to do so from either his father or his mother. The father testified further that he was aware of the fact that, on some of such occasions, Paul Jefferson, Jr., and others of his son's friends had ridden with him in the automobile. When asked whether he never denied permission to his son to use the automobile when nobody else was using it, the father testified: 'Well, in the absence of some disciplinary reason or some other reason that is probably true.' When asked if his son could use the automobile without express permission if neither of his parents was at home, R. E. Clark, the named insured, replied: 'Yes, he would feel free to take it if neither one of us is there or not and there is usually someone there.' Perhaps this particular testimony is of quite limited relevancy because cause there is no question about the fact that James B. Clark, the son, had express permission from his father, the named insured, to use and drive the automobile during the evening in question in this case.
On the evening in question R. E. Clark had given his son permission to use the family automobile. Both the father and the son testified that repeatedly the son had been expressly forbidden by his father to permit any other person to drive the automobile without the permission of R. E. Clark, the named insured, or his wife, and that the son had not been authorized to permit Paul Jefferson, Jr., to drive the automobile on the night in question in this case. On at least one occasion before the night in question, the named insured or his wife had given permission to Paul Jefferson, Jr., to drive the Clark automobile, apparently to Jefferson's home and back to the Clark home.
Clark and McCullough entered the Mantiki Club but Jefferson was not permitted to enter because he was under eighteen years of age. In these circumstances Clark gave Jefferson the keys for the automobile and two dollars in order that Jefferson might drive somewhere to get gasoline for the automobile. One of the two dollars was contributed by Clark and the other by McCullough. Apparently it was understood that Jefferson also would contribute money toward the proposed purchase of gasoline.
Both R. E. Clark, the named insured, and his son testified that the father 'repeatedly' had told the son not to permit any other person to drive the automobile. Nevertheless, it appears without contradiction that on the night in question ...
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