Travelers Indem. Co. v. Watkins, 44611

• Decision Date: 15 April 1968
• Docket Number: No. 44611,44611
• Citation: 209 So.2d 630
• Parties: The TRAVELERS INDEMNITY COMPANY v. Mrs. Opal WATKINS.
• Court: Mississippi Supreme Court

Page 630

209 So.2d 630

The TRAVELERS INDEMNITY COMPANY v. Mrs. Opal WATKINS.

No. 44611.

Supreme Court of Mississippi.

April 15, 1968.

Rehearing Denied May 13, 1968.

Wilbourn, Lord & Williams, Meridian, for appellant.

Laurel G. Weir, Philadelphia, for appellee.

ETHRIDGE, Chief Justice:

This case is a sequel to Riverside Industries of Philadelphia v. Watkins, 195 So.2d 844 (Miss.1967). In the former case this Court held that David Nunn, who was driving a truck loaned to him by Riverside Industries of Philadelphia (dereinafter called Riverside) at the time he negligently injured the appellee, Mrs. Opal Watkins, was not within the scope of his employment and therefore Riverside was not liable to Mrs. Watkins.

The present case is a garnishment proceeding, in which Mrs. Watkins, the judgment creditor of Nunn, filed a suggestion of garnishment against The Travelers Indemnity Company (hereinafter called Travelers), suggesting that Travelers was indebted to Nunn under its automobile liability insurance policy covering the truck Nunn was driving when Mrs. Watkins was injured, under the terms of the omnibus clause of the policy. Travelers answered the writ of granishment and denied that it was no indebted, Mrs. Watkins contested that answer, and thus the issue was made as to whether Nunn was an additional insured within the meaning of the omnibus clause. The Circuit Court of Neshoba County found for Mrs. Watkins and entered judgment against the garnishee, Travelers, for the amount of her judgment against Nunn ($12,000). We affirm.

The policy issued by Travelers is a comprehensive liability policy and contains the standard omnibus clause providing that the definition of the insured includes 'any person while using an owned automobile or hired automobile or any person or organization responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *'

The sole question is whether there was sufficient evidence to justify the finding by the circuit judge, who tried the case without a jury, that Nunn was an additional insured within the meaning of the omnibus clause of the policy.

Some of the facts concerning the circumstances under which the truck was loaned by Riverside to Nunn are stated in Riverside Industries of Philadelphia v. Watkins, supra. However, in that case the issue was whether Riverside was liable to Mrs. Watkins under the doctrine of respondeat superior, and the omnibus clause of the automobile liability insurance policy was not involved. The truck was loaned by the manager of Riverside to David Nunn to take Nunn's calf from a yard at the Riverside plant to Nunn's home. This occurred on Saturday afternoon, and when Nunn asked the manager if the truck should be brought back that afternoon, the manager replied: 'No. leave it at home, leave it in the yard there and bring it back Monday morning.' Nunn understood the limitations on his use of the truck, and that he was not supposed to use it on Sunday. However, there was no positive, express prohibition against using the truck on Sunday, although it is clear that the permission was limited to taking the calf from Riverside's plant to Nunn's home on Saturday afternoon and returning the truck on Monday morning.

The insurance business is affected with a public interest and is regared generally as quasi-public in character. The authorities abundantly support this statement. There are numerous statutes enacted by the legislature regulating insurance and in many instances specifying precise clauses that are written into insurance policies by law. Policies insuring automobile owners against public liability is the subject of the Mississippi Motor Vehicle Safety Responsibility Act, Mississippi Code 1942 Annotated section 8285-01 et seq. (1956), and the Uninsured Motor Vehicle Act, Mississippi Code 1942 Annotated section 8285-51 et seq. (Supp.1966). The latter statute became effective after the accident in this case. The Safety Responsibility Act specifically provides in section 8285-21 that an owner's policy of liability insurance within the meaning of that act 'shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured. * * *' The Motor Vehicle Safety Responsibility Act in its various sections is a clear manifestation of the public policy of this state that an automobile liability insurance policy is intended to protect those injured by careless drivers as well as the named insured and permittees.

In 12 Couch, Cyclopedia of Insurance Law section 45:293, at 305-06 (2d ed. 1964), the purposes of an omnibus clause are thus summarized:

The purpose of an omnibus clause is to protect the named insured, the persons within the omnibus clause, and the public generally and its members injured by the negligent operation of the insured automobile on a public highway.

There is an abundance of authority that the public policy is to protect those injured by careless drivers. See Annot., 5 A.L.R.2d 600 (1949).

The record reflects that after Nunn was involved in the accident with the appellee, a report was made to the Financial Responsibility Bureau of the Mississippi Department of Safety, in which it was stated that the truck Nunn was driving at the time of the accident was covered by the liability policy issued by appellant, Travelers. The record indicates that the fact that this policy existed satisfied the provisions of the Motor Vehicle Safety Responsibility Act and prevented Nunn from losing his driver's license in accordance with the act. Moreover, appellant's policy states that it shall comply with the provisions of the Motor Vehicle Financial Responsibility Law of any state when it is certified as proof of financial responsibility.

The general purpose of the omnibus clause is stated in 7 American Jurisprudence 2d Automobile Insurance section 109, at 420 (1963), as follows:

The purpose of the omnibus clause has generally been recognized as being a liberalizing one. Thus, it has been said that the purpose of the clause is to extend liability insurance coverage to persons other than the owner who had permission to use the car without arbitrary and definite restrictions on such use. Similarly, it has been said that the purpose of the clause is not only to protect a person riding in or legally operating a car with the permission required by the policy, but also to protect any person injured by the operation of the car by giving him a cause of action against the insurer for injuries deemed by law to have been caused by the operation of the car.

The same authority in section 112, at 424, states in part that:

It has been stated that the word 'permission' has a negative rather than affirmative implication-that is, a permitted act may be one not specifically prohibited as contrasted to an act affirmatively and specifically authorized. The permission need not be express but may be implied. In a statutory omnibus clause, the word 'permission,' it has been held, should not be limited in meaning to merely legal permission, but should be construed for the benefit of persons injured.

The cases involving the scope of permission and deviation from permitted use are broadly classified into three groups: (1) The strict or conversion rule, stated in 7 American Jurisprudence 2d Automobile Insurance section 120 (1963) is as follows:

According to this rule the actual use of the motor vehicle at the time of the accident must be one contemplated when permission for the use of the automobile was given. In other words, the time at which the bailment was to expire must not have passed; the place at which the automobile is used must be one either specified or contemplated by the parties; and the use made of the automobile at the time of the accident must be one either contemplated or specified.

(2) The liberal or initial-permission rule is as follows:

(1)f the original taking was with the insured's consent, every act subsequent thereto while the bailee is driving the car is held to be with the insured's permission in order to permit a recovery under the omnibus clause. Under this rule a deviation from the permitted use is immaterial, the only essential thing being that permission be given for use in the first instance. Id. § 121, at 439-40.

(3) The moderate or minor deviation rule is stated as follows:

Increasingly, the courts have taken an intermediate position between the two more extreme rules discussed above. This position has become known as the moderate or 'minor deviation' rule, and, while adopting the basic requisites of the strict or conversion rule, the courts applying this rule modify the strict rule to the extent that protection will be afforded the bailee if the use made by him is not a groos violation of the terms of the bailment. Under this doctrine, if the use made by an employee or other bailee is not such a gross violation, even though it may have amounted to a deviation, protection is still afforded to the bailee under the omnibus clause. Id. § 122, at 441.

The weight of authority is to the effect that a minor deviation by a permissive user of a motor vehicle will not effect a limitation upon the permittee's insurance coverage.

The omnibus clause is unique in that it allows the insured to include others as insureds under the policy merely by granting permission to use the vehicle. Most of the cases decided in recent years, since the advent of motor vehicle safety responsibility laws and other like manifestations of public policy, hold that, when the use being made at the time of the accident was not a gross deviation from the time, space and purpose limitations of the permission, although contrary to the permission given, a cancellation of the insurance coverage will not result.

In the present case there were three broad factors as far as the permission was concerned: (1)...