State Farm Mut., Etc., Ins. Co. v. Cook
| Decision Date | 03 September 1947 |
| Docket Number | Record No. 3213. |
| Citation | 186 Va. 658 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WILLIAM H. COOK. |
| Court | Virginia Supreme Court |
1. APPEAL AND ERROR — Appeal Bond — Execution by Attorney for Corporate Defendant — Case at Bar. — In the instant case, an action against the insurer of the owner of a truck which collided with plaintiff's automobile, plaintiff contended that the writ of error should be dismissed because of the failure of defendant to give bond under its corporate seal. Section 6351 of the Code of 1942 (Michie) provides that a writ of error shall not take effect until a bond be given by the petitioners, or one or more of them, or some other person. The bond was executed by defendant by its attorney, and by the attorney in his individual capacity, as joint principals, and by a surety company as surety.
Held: That the execution of the bond by the attorney as principal, with his seal, and by the bonding company, as surety, satisfied the requirements of the statute.
2. INDEMNITY INSURANCE — Code Section 4326a — Operation of Vehicle in Business of Owner "or Otherwise". — In section 4326a of the Code of 1942 (Michie), providing that every automobile liability policy shall contain a provision insuring the owner against liability for damages for death or injuries to person or property resulting from neglibence in the operation of the motor vehicle, in the business of the owner or otherwise, by any person legally operating the same with the permission, express or implied of such owner, the obvious significance of the words "or otherwise" is not to confine the operation of the motor vehicle at the time to the precise business of the owner.
3. INDEMNITY INSURANCE — Code Section 4326a — Meaning of Express or Implied Permission Referred to in Statute. — The express or implied permission referred to in section 4326a of the Code of 1942 (Michie), providing that every automobile liability policy shall contain a provision insuring the owner against liability for damages resulting from negligence in the operation of the motor vehicle, in the business of the owner or otherwise, by any person legally using the same with the permission, express or implied, of the owner, means the express or implied permission to use or operate the motor vehicle either in the business of the owner or for any other purpose for which express permission was given or as to which it may be implied that permission was given. Permission to do a specific thing is not permission to do all things.
4. INDEMNITY INSURANCE — Trend towards Liberalizing and Broadening Coverage Provisions. — The trend in Virginia of legislative enactment as well as judicial determination and construction has been towards liberalizing and broadening the coverage provisions of liability insurance policies.
5. INDEMNITY INSURANCE — Code Section 4326a — Regard to Be Had to Words in Determining Meaning. — Regard must be had to the words used in section 4326a of the Code of 1942 (Michie), requiring every automobile liability policy to contain an omnibus clause extending the same coverage as that given the named insured to one legally operating the car with the owner's permission, express or implied, to determine the meaning of the statute, and the meaning as determined should be given effect.
6. INDEMNITY INSURANCE — Code Section 4326a — What Constitutes "Implied" Permission to Operator of Car. — Under section 4326a of the Code of 1942 (Michie), requiring every automobile liability policy to contain an omnibus clause extending the same coverage as that given the named insured to one legally operating the car with the owner's permission, express or implied, the permission, "express or implied," from the owner, necessary to make the operator of the car an additional assured, must be either an express permission or a permission reasonably to be implied from the circumstances of the case.
7. INDEMNITY INSURANCE — Code Section 4326a — Implied Permission to Operator Not Confined to Affirmative Action. — Under section 4326a of the Code of 1942 (Michie), requiring every automobile liability policy to contain an omnibus clause extending the same coverage as that given the named insured to one legally operating the car with the owner's permission, express or implied, implied permission involves an inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or lack of objection under circumstances signifying assent, and an implied permission is not, therefore, confined alone to affirmative action.
8. INDEMNITY INSURANCE — Questions of Law and Fact — Whether Truck Was Being Operated with Implied Permission of Owner — Case at Bar. — In the instant case, an action against the insurer of the owner of a truck which collided with plaintiff's automobile, defendant contended that the truck was not being legally used or operated with the permission, express or implied, of the owner. The truck was being used by an employee of the owner who had permission to take it to his home each night and who was not prohibited from using it for his own pleasure and purposes; the owner had seen him using the truck for his own purposes, and subsequent to the accident he continued to take the truck to his home. At the time of the accident the employee was using the truck for his own pleasure and without the knowledge of the owner.
Held: That whether the employee had the implied permission of the owner to use the truck on his own mission on the night of the accident was a question of fact.
9. INDEMNITY INSURANCE — Sufficiency of Evidence — To Show Implied Permission from Owner to Use Truck — Case at Bar. — In the instant case, an action against the insurer of the owner of a truck which collided with plaintiff's automobile, defendant contended that the truck was not being legally used or operated with the permission, express or implied, the owner. The truck was being used by an employee of the owner who had permission to take it to his home each night and who was not prohibited from using it for his own pleasure and purposes; the owner had seen him using the truck for his own purposes, and subsequent to the accident he continued to take the truck to his home. At the time of the accident the employee was using the truck for his own pleasure and without the knowledge of the owner.
Held: That the conclusion that permission from the owner to the employee who used the truck ought to be implied was well warranted by the evidence.
10. INDEMNITY INSURANCE — Admissibility of Evidence — Declaration Filed by Insurer under Code Section 2154(a34) — Case at Bar. — In the instant case, an action against the insurer of the owner of a truck which collided with plaintiff's automobile, defendant contended that a declaration, made by an insurance company, pursuant to section 2154(a34) of the 1946 Cumulative Supplement to the Code of 1942 (Michie), requiring an insurance carrier, upon notice of an accident, to furnish a written notice that the policy of insurance was in effect at the time of the accident, stating that the policy did not cover the driver of the motor vehicle involved in the accident, was admissible evidence on behalf of the the insurer.
Held: That the declaration referred to was not evidence but was a self-serving statement which was inadmissible.
Error to a judgment of the Circuit Court of the city of Williamsburg and county of James City. Hon. Frank Armistead, judge presiding.
The opinion states the case.
Asbton Dovell, for the plaintiff in error.
R. T. Armistead, for the defendant in error.
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On the night of February 28, 1946, a collision took place between an automobile, driven by William H. Cook, and a truck owned by E. W. Maynard, driven by David Wallace, who was substituting for John Palmer. Palmer was in general and usual charge of the truck, by express permission of its owner, Mr. Maynard. Palmer and Wallace were employees of Mr. Maynard, who owned and operated a farm near the city of Williamsburg. Palmer lived a mile and a half from the Maynard home. He had been working intermittently for Mr. Maynard for some ten years. One of his duties was to take the truck to Williamsburg every morning and get garbage from William and Mary College and take it to Maynard's farm to be fed to his hogs. At first Mr. Maynard would take Palmer in his own automobile to his home at night and go for him the next morning, but this arrangement was inconvenient and unsatisfactory. It was discontinued, and Palmer by Maynard's direction began taking the truck from the farm to his own home at night where it would be in readiness for his garbage errand in the morning.
On the night of the accident Palmer drove the truck to Williamsburg on a mission of his own. There he met Wallace, whom he invited to ride with him to Crutchfield's Beer Parlor, which is about four miles from Williamsburg in the direction of Richmond. Wallace was employed as a helper on the truck. On the return trip Palmer, who had become intoxicated and was about to fall asleep, asked Wallace to drive for him, and the collision took place soon afterward.
William H. Cook, on account of the damages sustained, obtained judgment in the trial justice's court against Wallace and Palmer for the sum of $904.50. The truck was covered by a policy of liability insurance issued to its owner by the State Farm Mutual Automobile Insurance Company. Cook then instituted the action with which we are concerned in the trial justice's court against the Insurance Company. The case was removed to the circuit court, where it was heard, by consent of the parties, without the intervention of a jury. The court found as a fact that Palmer was legally using the truck with the implied permission of Maynard, and entered judgment for the plaintiff on July 23, 1946, and it is before this court on a writ of error.
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