U.S. Fidelity & Guar. Co. v. Brann

• Decision Date: 25 February 1944
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BRANN (two cases). SAME v. JOHNSON (two cases).
• Court: Kentucky Court of Appeals

180 S.W.2d 102

297 Ky. 381

UNITED STATES FIDELITY & GUARANTY CO. v. BRANN (two cases).

SAME v. JOHNSON (two cases).

Court of Appeals of Kentucky

February 25, 1944

Rehearing Denied June 2, 1944.

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Suits by Dr. Albert Brann, by Mrs. Wilma Brann, by T. P. Johnson and by Hazel Johnson against the United States Fidelity &amp Guaranty Company on unsatisfied judgments recovered against driver of motor truck covered by policy issued by defendant. From adverse judgments, defendant appeals.

Judgment reversed.

Stephens & Steely, of Williamsburg, for appellant.

J Marshall McCann, of Lexington, and H. C. Gillis, of Williamsburg, for appellees.

STANLEY Commissioner.

A small truck owned by H. C. Hopper and driven by Orland Gaylor collided with an automobile in which Dr. Albert Brann, his wife, T. P. Johnson and his wife, citizens of Texas, were riding and injured them in various degrees. Suits for damages were brought against Hopper and Gaylor, but were dismissed as to Hopper. Judgments for different amounts were recovered of Gaylor, but they could not be collected as he is insolvent. These suits were then brought on the judgments against United States Fidelity & Guaranty Company, which carried indemnity insurance on the truck. Verdicts were recovered upon the issue of whether Gaylor had permission to use the machine. The Company brings appeals from the several judgments rendered thereon.

The policy of indemnity stipulates, with certain inapplicable exceptions, that the word insured 'includes not only the Named Insured but also any person while using the automobile * * * provided the declared and actual use of the automobile is 'pleasure and business,' each as defined herein, and provided further the actual use is with the permission of the named insured.' Such a provision is generally called an omnibus clause. In some states it is written into policies of this kind by virtue of a statute. It is conceded that the injured plaintiffs would be entitled to the benefits of the insurance indemnity if the evidence had established that the use of the truck by Gaylor was with Hopper's implied or inferred permission under a proper construction of the policy.

Permission within the meaning of the provision is not limited to that expressly granted but may arise and be implied from circumstances. It seems to us that where there is no express consent for an employee to use his employer's car, and implied permission extends only to its use in the scope of the employment (slight deviations making no difference) and that its use outside that employment cannot be implied unless there had been permission to use the car generally or a course of conduct or a practice with the knowledge and acquiescence of the owner, such as would indicate to a reasonable mind that the employee had the right to assume permission under the particular circumstances. United States Fidelity & Guaranty Co. v. Hall, 237 Ky. 393, 35 S.W.2d 550; Western Casualty & Surety Co. v. Strozier, 67 Ga.App. 41, 19 S.E.2d 433; Annotations, 41 A.L.R. 495; 72 A.L.R. 1375; 106 A.L.R. 1254; 126 A.L.R. 548. Included in this would be knowledge of the employee using the car for his own purpose or private affairs on different or similar occasions by acquiescence or lack of objection or of reprimand by the employer or owner. Maryland Casualty Company v. Ronan, 2 Cir., 37 F.2d 449, 72 A.L.R. 1360; Tomasetti v. Maryland Casualty Company, 117 Conn. 505, 169 A. 54.

In the case at bar it is claimed there is more than the ordinary relationship of employer and employee because the driver was a member or guest in the owner's home. It would probably not be contended that there was no liability if the driver should come within the family purpose doctrine, which goes further and imputes the relationship of principal and agent where one maintains an automobile for the pleasure or other use of members of his family. United States Fidelity & Guaranty Co. v. Hall, supra; Randig v. O'Hara, 123 Pa.Super. 251, 187 A. 83. The purpose of an 'omnibus clause' is to extend the coverage beyond such limitations. Vezolles v. Home Indemnity Co., D.C., 38 F.Supp. 455, affirmed Home Indemnity Co. v. Vezolles, 6 Cir., 128 F.2d 257. We think substantially the same conditions must exist with respect to a boarder or guest in a household, as we have suggested should exist in the relation of employer and employee. We held in the Hall case that an adult son who lived with his mother, in whose name title to the automobile had been placed by him, under the circumstances had the implied permission of the mother to use the car although not obtaining her consent to use it upon the particular trip during which the accident occurred, especially since the policy provided that any adult member of the insured's family might grant such permission to another. But there can be no implied permission by reason of the relationship where an employee or guest or other person occupying a similar association takes the car and uses it for the first time. Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368; Brochu v. Taylor, 223 Wis. 90, 269 N.W. 711. Of course, there may be an implied consent in the first instance if the peculiar circumstances justify the inference.

Whether there was a permission within any of the foregoing interpretative applications at the time and place and for the purpose the car was being used is, of course, a question of fact. But if the evidence is all one way without susceptibility of a different inference or deduction and there is no evidence bringing the case within those rules, of course, it becomes a matter of law for the court. We examine the evidence.

Orland Gaylor was an orphan and as he was growing up he worked for Hopper as a delivery boy in his grocery in Corbin. Four years before the accident he left there, spending most of his time in New Mexico, but returned to this part of the country in April, 1941. His brother worked as a delivery boy for several months and then obtained a better job. Orland, who was then about 25 years old, took up his old job with Hopper about two weeks before the accident. He had been staying part of his time in the homes of his brother and sister, but occasionally slept and took his meals in the Hopper home, which was an apartment above the grocery. Hopper and his wife thought well of the young man and welcomed him as a guest. The keys to the delivery truck were kept in the store and obtained there by Gaylor or others for use in the business during the time the store was open. It and a passenger car were kept in a garage on the premises.

On Sunday morning, September 21, 1941, at Hopper's request Gaylor took the truck and drove about town gathering up some young men for a Sunday School class taught by Hopper. He had done so the previous Sunday. After leaving the boys at the church Gaylor put the car in the garage, which was about two squares away, locked the door and went back to the class himself. He kept the keys in his pocket. He ate noonday dinner with the Hopper family. In the early afternoon Hopper left home in his passenger car. During his absence Gaylor took the truck, drove about town a little while with some other young men and then went westwardly three or four miles from Corbin, where the accident occurred. The car was demolished and Gaylor was seriously injured. Both Hopper and Gaylor testified he had no permission to use the car on this occasion and that Hopper did not know he had it out. Gaylor did not decide to use it until Hopper had left home, and then intended to go to call on a young lady at Grays, which is east of Corbin, but was riding around before going there. As tending to show a former use under like circumstances, the...