Tomasetti v. Maryland Casualty Co.

• Decision Date: 07 November 1933
• Citation: 169 A. 54,117 Conn. 505
• Court: Connecticut Supreme Court
• Parties: TOMASETTI v. MARYLAND CASUALTY CO.

169 A. 54

117 Conn. 505

TOMASETTI v. MARYLAND CASUALTY CO.

Supreme Court of Errors of Connecticut.

November 7, 1933

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Action by Arsenio Tomasetti, administrator of the estate of Ada Tomasetti, deceased, against the Maryland Casualty Company on an automobile liability insurance policy. From a judgment for plaintiff after trial to the court, defendant appeals.

No error.

Prolonged frequent, and habitual use of automobile by another than owner with latter's knowledge and acquiescence amounts to " permission" within policy provision making liability insurance available to one operating car with insured's permission.

Delancey S. Pelgrift, of Hartford, for appellant.

Bernard H. Trager and Isadore L. Kotler, both of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, Judge.

The defendant issued a policy insuring against loss from liability for the operation of an automobile of Martin Preneta. A provision of the policy made the insurance available to any person lawfully operating the car " with the permission of the named assured." While it was being driven by Vincent Pozucek it struck and killed the plaintiff's intestate, a judgment therefor was obtained by the plaintiff against Pozucek which has not been paid, and this action was brought to recover the amount from the insurer.

The record indicates that upon the trial as well as upon this appeal the contested issue was whether Pozucek had permission to operate the car so as to bring him within the protection of the policy. The trial court found that while title to the car was in Martin, he could not drive and it was operated by his son Peter, a minor, and by Pozucek, who is a cousin of Martin and lived on the same street; that the latter, for six or seven months, had used it two or three times a week with the knowledge and assent of Martin, who on several of these occasions was a passenger in the car; that when Pozucek took the car he asked the son Peter whether the latter intended to use it; and that on the morning of the accident Peter told his father that Pozucek had the car to go to his place of employment in Bridgeport, and no objection was made by Martin.

The defendant claimed that Pozucek did not have permission for operation of the car within the terms of the policy, and therefore was not an additional assured. The trial court, however, concluded that he was operating with the permission of Martin, and that the latter ratified the use on the day of the accident. Assignments of error attack the finding of facts pertaining to the continued and frequent use of the car by Pozucek and Martin's knowledge of such use, but we are unable to eliminate these and, as requested, to substitute a finding that Martin had no such knowledge until told by his son, on the day of the accident, that Pozucek had taken it to go to work on that day. The testimony of Pozucek was sufficient to support the finding in these respects, and while that of Martin Preneta was vacillating upon this subject, it included admissions which, if believed, indicated that Pozucek used the car for business purposes under an arrangement either with Martin or, at least, with his son with Martin's knowledge and consent.

The question presented by assignments relating to the conclusions and the overruling of the defendant's claims is whether the situation depicted by the finding constitutes permission within the meaning of the policy. As to this we understand the appellant's contention to be that in order to comply with the policy requirement there must be specific permission for the trip upon which damage is inflicted, or, at least express general authority to use and operate. Assuming, for present purposes, that the facts are insufficient to establish either of these, the crucial question is whether permission implied from a course of conduct known to and acquiesced in by the named assured is sufficient to satisfy the policy provision. In determining the construction to be placed upon an insurance policy, a cardinal rule is that an ambiguous provision " must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to indemnity. *** When the words are, without violence, susceptible of two interpretations that which will sustain his claim and over the loss...