Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa

• Decision Date: 09 January 1952
• Docket Number: No. 14384.,14384.
• Citation: 193 F.2d 255
• Parties: STOLL v. HAWKEYE CAS. CO. OF DES MOINES, IOWA.
• Court: U.S. Court of Appeals — Eighth Circuit

193 F.2d 255 (1952)

STOLL v.HAWKEYE CAS. CO. OF DES MOINES, IOWA.

No. 14384.

United States Court of Appeals Eighth Circuit.

January 9, 1952.

H. L. Fuller, Sioux Falls, S. D. (C. L. Morgan, H. T. Fuller, Mitchell, S. D., M. T. Woods, J. B. Shultz, T. M. Bailey, Jr., and F. M. Smith, all of Sioux Falls, S. D., on the brief), for appellant.

Gale B. Braithwaite, Sioux Falls, S. D. (M. Q. Sharpe, Kennebec, S. D., and Joe W. Cadwell, Sioux Falls, S. D., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Joyce Stoll, who will be referred to as the plaintiff, was injured on September 19, 1947, in Chamberlain, South Dakota, when a pickup motor truck driven by Emil Wagaman, and owned by Walter Manhalter, tipped over while she, at the invitation of Wagaman, was riding on a running board of the truck.

She sued both the owner and the driver of the truck for damages in a State court of South Dakota.She obtained a judgment only against Wagaman, the driver, which was later affirmed by the Supreme Court of South Dakota.Stoll v. Wagaman, 40 N.W.2d 393.The State trial court directed a verdict in favor of Manhalter, the owner.The plaintiff did not appeal from the judgment in Manhalter's favor.

After her judgment against Wagaman became final, the plaintiff garnished the Hawkeye Casualty Company of Des Moines, Iowa, the liability insurer of Manhalter, in the State court action, asserting that under the "omnibus clause" of its policy covering the truck, the Company was indebted to Wagaman, as an insured, in the amount of her judgment against him.The clause reads as follows: "The unqualified word `insured' wherever used in coverages A and B and in other parts of this policy when applicable to such coverages includes the named insured and, except where specifically stated to the contrary, 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 with the permission of the named insured."

The Company removed the garnishment action to the federal court on the grounds of diversity of citizenship and amount in controversy.It denied that it was indebted to Wagaman.The issue of the policy liability of the Company to him was tried to a jury.At the close of the evidence, the plaintiff moved for a directed verdict upon the ground that the evidence conclusively showed that at the time of the accident the "actual use" of the truck by Wagaman was with the permission of Manhalter, "the named insured."The motion was denied.

The Company moved for a directed verdict on the ground that the evidence established as a matter of law that the "actual use" of the truck by Wagaman was without permission from Manhalter, and that the State court judgment in Manhalter's favor was res judicata of that issue.The District Court directed a verdict for the Company, and this appeal followed.

The first witness called by the plaintiff at the trial was Emil Wagaman, the driver of the truck (who in 1947 was twenty-five years old).He testified that he went to the home of Mr. and Mrs. Davis on Main Street in Chamberlain, South Dakota, at about 6:30 p. m. on September 19, 1947; that the Davis house is on the west side of the street and about three or four blocks south of the business section of the town; that his cousins Jimmy Wagaman(fifteen years of age in 1947) and Walter Manhalter were there with Mr. and Mrs. Davis and others; and that he(Emil Wagaman) knew that Walter Manhalter's pickup truck was at the Davis home.He then testified as follows:

"* * * After I had visited there sometime there was conversation about cigarettes.Everybody was out and I offered to go and get some.I was out of cigarettes too and wanted some.I asked Walter Manhalter for the keys to the truck.He said the keys were in the truck.Then I started out for the truck and my cousin Jimmy went with me, and we got in the truck.

* * * * * *

"We drove towards the Stoll residence south from the Davis house, which is about a block and a half.We stopped along there having seen Joyce Stoll and Elaine Zeman and talked with them.I asked them where they were going and what they were doing and they said they were going in and change clothes and then go to a show or eat.I turned around and went towards town.The girls were not with us, I imagine they went in the Stoll house.Then I think we went downtown, but don't remember whether we drove all of the way down there or turned around again or what.At any rate we went on north of the Davis house and turned around and came back south again.We were up north probably five or ten minutes, and drove south past the Davis house.I saw the girls then and drove up to them when they were about half way between the Davis house and the Stoll residence, or about three quarters of a block south of the Davis house and stopped there.I invited them for a ride and they got on the running board on either side of the truck and we drove toward the sanitarium south again, which was three or four blocks on south of the Stoll house.The sanitarium is about as far as you can go on Main Street.We were going to turn around there and come back and planned to take the girls downtown.As I approached and entered the sanitarium grounds, the pickup tipped over there and Joyce Stoll was injured, which was the injury involved in the law suit at Chamberlain for which she got judgment."

On cross-examination, Emil Wagaman testified:

"* * * It is about three blocks from the entrance to the sanitarium to the sanitarium building itself.I went on down through the sanitarium grounds past the building before I upset.It would be five or six blocks north from the sanitarium corner to the place where we picked the girls up.

"I volunteered to go and get cigarettes and that is what I got the pickup for.Instead of going north to town to get cigarettes, I went south when I first saw Joyce and Elaine.Then we went north, I don't know exactly where we went.* * * I don't believe we got any cigarettes.Then we turned around to go back to the girls again.I didn't stop to give the cigarettes to anyone.

"Just six days after accident happened, I made a written statement in which I said: `We were all sitting inside of the Davis home when I discovered I didn't have any cigarettes.I asked Walter if I could take his pickup and go get some cigarettes.This 1946 Chevrolet pickup is the only one Walter owned.I asked Walter if I could take his pickup.Walter said go ahead.I asked him for the keys and he said the keys were in the pickup.'"

On redirect examination, Emil Wagaman testified that it was not more than six blocks from the Davis house to the sanitarium, and the distance to town from the house was a few blocks, "so the area in which I was operating this truck extended simply for a few blocks in either direction from the Davis home."

At the conclusion of the testimony of Emil Wagaman, the plaintiff rested.The Company then moved for a directed verdict in its favor on the ground that the actual use being made by Wagaman of the truck at the time of the accident was not only a substantial deviation but a complete departure from any purpose for which he was permitted to use the truck, and that the jury could not find otherwise.The court reserved its ruling on the motion, and the Company put in its evidence.Its witnesses were Walter Manhalter and Jimmy Wagaman.Their testimony did not differ materially from that given by Emil Wagaman with respect to the permission granted him to use the truck after he had volunteered to get cigarettes.

A portion of Manhalter's testimony, on cross-examination, is as follows: "When I told him the keys were in the truck I thought he was going downtown for cigarettes.That is what he said but I didn't know where he was going.I do not remember any conversation in the first part of October following this accident in September at the city hall in Chamberlain in which Howard Stoll was present also Mr. Haley, the Sheriff, in which I was asked the question `Did Wagaman have permission to drive the truck' and to which I made answer, `Sure he had permission to drive the truck.All of my friends can use my cars when they want to.'"

Manhalter also testified that he did not see Emil and Jimmy when they drove away, and did not see the girls at that time; that about ten or fifteen minutes after the boys left, he saw the truck again; that he was then on the front porch of the Davis home, and, as they drove in front of the house going south down the street, he hollered: "Hey, where are you going with that pickup?Bring it back."He also testified that he saw the truck stop about two blocks south after it passed the Davis house, and saw the girls get in the truck and the truck go on south; that he never told Emil or Jimmy that it would be all right for them to pick up the girls; and that he had a date and intended to use the truck later that evening.

Jimmy Wagaman corroborated Manhalter's testimony.Jimmy testified that,...