Vezolles v. Home Indemnity Co., New York

• Decision Date: 05 May 1941
• Docket Number: No. 173.,173.
• Citation: 38 F. Supp. 455
• Parties: VEZOLLES v. HOME INDEMNITY CO., NEW YORK.
• Court: U.S. District Court — Western District of Kentucky

38 F. Supp. 455

VEZOLLES v. HOME INDEMNITY CO., NEW YORK.

No. 173.

District Court, W. D. Kentucky, at Louisville.

May 5, 1941.

L. S. Grauman and Simeon S. Jacobs, both of Louisville, Ky., for plaintiff.

Mortimer Viser and Davis, Boehl, Viser & Marcus, all of Louisville, Ky., for defendant.

MILLER, District Judge.

This action is before the Court on the defendant's motions for a new trial and for judgment notwithstanding the verdict.

On June 6, 1939, the defendant the Home Indemnity Company, of New York, issued to Alvin Morton, Jr., its policy of liability insurance covering a Ford sedan owned by Morton. The limit of liability was $5,000. The policy named Morton as the assured and also extended the insurance to others under the following provisions contained in the policy:

"The unqualified word `assured' wherever used includes not only the named assured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business' or `commercial' each as defined herein, and provided further that the actual use is with the permission of the name assured."

On the morning of September 3rd, 1939, Arthur Ruemmele was operating the Ford owned by Morton and ran over the plaintiff Katie Vezolles while attempting to cross the street at 26th and Market Street in Louisville, Kentucky. The plaintiff sued Morton and Ruemmele in the Jefferson Circuit Court. The trial Judge directed a verdict in favor of Morton for the reason that Ruemmele was not at the time of the accident acting as the agent or employee of Morton. The jury returned a verdict against Ruemmele for $15,000, no part of which was paid. Following the sheriff's return of no property found upon the execution issued under the state judgment, the plaintiff filed this action against the Insurance Company claiming that Ruemmele was covered by the policy under the omnibus clause above referred to. The policy obligated the Insurance Company to pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of liability imposed upon him by law for damages arising out of the use of the automobile. The defendant contends that at the time of the accident the actual use of Morton's car was not with the permission of Morton as required by the policy. It also pleaded the state court judgment in favor of Morton as a bar to this proceeding.

The third paragraph of the answer pleading the state court judgment as a bar was stricken by the Court on plaintiff's motion. The issue involved in the state court trial was not the same issue as was involved in this action. The directed verdict in favor of Morton decided that Ruemmele was not the agent of Morton. It did not decide that Ruemmele was using the car without the permission of Morton. Liability on the part of Morton in that action was predicated upon the relationship of principal and agent. Liability on the part of the Insurance Company in the present case is predicated upon the fact of permissive use of Morton's car by Ruemmele. The relationships of principal and agent and permissive use are entirely different. Permissive use of the car by Ruemmele could exist without the relationship of principal and agent existing.

The facts leading up to the use of the car by Ruemmele at the time of the accident were as follows: Morton, who had married in August, 1939, invited Ruemmele and a young lady to his house for a small party on the night of September 2nd. Morton lived just south of the city limits and called for Ruemmele in the Ford to take him to his house in the early evening. At about 10:30 Morton told Ruemmele to use his car and go for the young lady, which Ruemmele did. The party broke up between 2:30 and 3 o'clock in the morning. Morton told Ruemmele to take the young lady home in Morton's car, then to return to Morton's house and Morton would take him to his home in the City. When Ruemmele returned to Morton's house about 4 a.m. Morton and his wife were asleep and the house was locked. Ruemmele rang the bell and knocked and after being unable to arouse anyone decided to drive himself home. On the way home he went about four squares past Kentucky Street on which he lived, and stopped at a cafe where he had something to drink with a friend whom he found there. He and his friend then decided to take a ride before going home. They drove further north in the city approximately a mile to 26th and Market where the accident occurred. The scene of the accident was about three squares west and about 9 squares north of where Ruemmele lived. The car was headed in the direction away from Ruemmele's home at the time of the accident. At the conclusion of the plaintiff's evidence which showed the foregoing facts, the defendant offered no further evidence and the Court directed a verdict in favor of the plaintiff in the amount of $5,000.

The authorities throughout the country are divided in their support of two different rules applicable to cases of this kind. The plaintiff relies upon the doctrine of where the owner of the car gives permission to another to use the car such use is covered by the policy even though the person using the car may use it in a way or go places not contemplated by the owner. This rule is somewhat modified in some of the cases by holding that the use is a permitted one under the terms of the policy where the deviation from the contemplated use is a slight one, although this doctrine has been criticized upon the ground that it establishes a test of liability which is necessarily variable and uncertain. Dickinson, Administrator v. Maryland Casualty Company, 101 Conn. 369, 125 A. 866, 41 A.L.R. 500; Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368, and Annotation beginning at page 1401; Caldwell v. Standard Accident Insurance Company, 6 Cir., 98 F.2d 364. The defendant relies upon the doctrine that permission of the owner to the use of his car by another includes only such use as was reasonably contemplated by the owner and that use of the car by the operator outside of the scope of the contemplated use prevents such use from being a permitted use within the terms of the policy. It also relies upon the doctrine above referred to that a deviation from the contemplated use which is more than a slight deviation makes the use of the car one without the owner's permission. Frederiksen v. Employers' Liability Assurance Corporation, 9 Cir., 26 F.2d 76; Trotter v. Union Indemnity Co., 9 Cir., 35 F.2d 104; Caldwell v. Standard Accident Ins. Co., 6 Cir., supra. There are numerous other authorities supporting both doctrines, but inasmuch as the foregoing cases well present the conflicting views it is not necessary to include numerous other citations in support of the respective...