United States Fidelity & Guaranty Co. v. Hall

• Decision Date: 13 February 1931
• Citation: 237 Ky. 393
• Parties: United States Fidelity & Guaranty Company v. Hall. (Two Cases.)
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 393

United States Fidelity & Guaranty Company v. Hall. (Two Cases.)

Court of Appeals of Kentucky. (Common Pleas Branch, Fourth Division.)

Decided February 13, 1931.

1. Automobiles. — Mother held not liable for injuries by son using her automobile on his own business.

2. Automobiles. — "Family purpose doctrine" does not apply to operation of mother's automobile by adult son, though with mother's consent.

3. Insurance. — Policy insuring person operating automobile with permission of adult member of insured's household impliedly covered insured's adult son, though not obtaining consent to use automobile.

4. Insurance. — Adult son's failure to return home with mother's automobile as requested, held not such departure from permitted use as to exclude son from policy insuring adult members of insured's household.

Appeals from Jefferson Circuit Court

HITE H. HUFFAKER, W.W. DOWNING and JOHN R. MOREMAN for appellant.

LUKINS & JONES and HARRY D. FRANCE for appellees.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

These two suits were tried together in the court below and the appellee Anna Lee Hall recovered a judgment for $2,202, and the appellee Thelma Hall one for $845 against the United States Fidelity & Guaranty Company. The company has appealed.

On August 28, 1926, the appellant issued to Mrs. Delia Bannon a policy of automobile liability insurance covering a Chevrolet sedan owned by her. Pertinent provisions of the policy are these:

"Omnibus Coverage.

"To extend the insurance provided by this policy so as to be available, in the same manner and under the same conditions as it is available to the named Assured, to any person or persons while riding in or legally operating any of the automobiles covered hereunder, and to any person, firm or corporation legally responsible for the operation thereof (excepting always a public garage, automobile repair shop and/or sales agency and/or service station and agents and employees thereof), provided such use or operation is with the permission of the named Assured; or, if the named Assured is an individual, with the permission of an adult member of the named Assured's household other than a chauffeur or a domestic servant. In no event shall the extension of insurance provided in the foregoing clause be construed to cover the purchaser of the automobile or automobiles covered by this policy, if sold, or the transferee or assignee of this policy except by the written consent of the Company endorsed hereon."

"Insolvency Provision.

"The insolvency or bankruptcy of the Assured hereunder shall not release the Company from the payment of damages for injuries sustained or loss occasioned during the life of this policy, and in case execution against the assured is returned unsatisfied because of such insolvency or bankruptcy in an action brought by the injured or his or her personal representative in case death results from the accident, then an action may be maintained by the injured person or his or her representative against the Company under the terms of the policy for the amount of the judgment in the said action, not exceeding the amount of the policy."

Mrs. Delia Bannon lived with her only son, Edward F. Bannon, who was an adult 30 years of age. There were no other members of the household. The son purchased and paid for the automobile, but the title was taken in the name of the mother. Mrs. Bannon could not drive the automobile, and when she desired to use it her son always drove it. On March 9, 1927, Edward F. Bannon, who was engaged in business in the city of Louisville, employed in his office the appellee Anna Lee Hall. He had no typewriter in the office, and Miss Hall suggested to him that she had a typewriter at her home which he could use. In the evening of that day Mrs. Bannon, at her son's request, permitted him to use her automobile for the purpose of going to the Kosair Hotel in Louisville to see a friend on business. She requested him to return by 8 or 8:30 o'clock and take her to the home of her sister-in-law. He took the car, went to his place of business on Walnut street in Louisville, then to the Kosair Hotel where he met Edward Treman. In the meantime he had met James O'Leary and had invited him to accompany him. From the hotel he telephoned the appellees and arranged to visit their home, as he claims, for the purpose of obtaining the typewriter and taking it to his office. From their home the three men accompanied by appellees went to a road house located on the Bardstown road beyond the city limits where they remained until about 1 o'clock in the morning of March 10. On their return to the city the automobile in which they were riding, and which was driven by Bannon, collided with a street car, and the appellees were injured.

They filed suits in the Jefferson circuit court against Mrs. Delia Bannon, the Louisville Railway Company, and Edward F. Bannon, in which they sought to recover damages for the injuries received as a result of the collision. At the trial the court peremptorily instructed the jury to find for the defendant, Mrs. Delia Bannon, and the jury by its verdict found for the defendant Louisville Railway Company, but returned a verdict against the defendant Edward F. Bannon, in favor of each of the plaintiffs for the sums above stated. Executions were issued on the judgments entered on the verdicts, and the sheriff returned them, "No property found."

Thereafter these suits were filed against the United States Fidelity & Guaranty Company to recover the amounts of the judgments appellees had obtained against Edward F. Bannon, son of Mrs. Delia Bannon...