West v. McNamara

• Decision Date: 15 April 1953
• Docket Number: No. 32984,32984
• Citation: 111 N.E.2d 909,50 O.O. 229,159 Ohio St. 187
• Parties: , 50 O.O. 229 WEST v. McNAMARA et al.
• Court: Ohio Supreme Court

Page 187

159 Ohio St. 187

111 N.E.2d 909, 50 O.O. 229

WEST v. McNAMARA et al.

No. 32984.

Supreme Court of Ohio.

Decided April 15, 1953.

Syllabus by the Court.

An automobile liability insurance policy covering not only the named insured but also any person while actually using the automobile with the permission of the named insured does not cover the permittee of a permittee of a permittee of the named insured, where the last permittee drives the car without the presence of the named insured or the first or second permittee or not in the interest of or for a purpose mutual to such driver and the named insured or his permittee, and where neither the named insured nor the first permittee permits, either directly or by implication, the last permittee to drive such car. Brown v. Kennedy, 141 Ohio St. 457, 48 N.E.2d 857, distinguished.

On September 23, 1938, Gerald West, hereinafter designated plaintiff, instituted an action against one Paul McNamara in the Court of Common Pleas of Cuyahoga County upon the claim that he, West, had sustained personal injuries and property damage by reason of McNamara's negligent operation of an automobile. West secured a final judgment for money against McNamara.

It appearing that at the time of West's injuries the automobile driven by McNamara and owned by the H. F. Hammon Development Company was covered by a liability insurance policy issued to such company by the Employers' Liability Assurance Corporation, Ltd., West, on April 30, 1950, filed a supplemental petition under the provisions of Section 9510-4, General Code, in which he makes such insurer a defendant and seeks to subject the insurance money provided by the policy to the payment of the judgment obtained against McNamara.

By answer the insurer admits the issuance and existence of the liability insurance policy on the automobile described in the supplemental petition, but denies the right of West to avail himself of its protection.

The cause was heard by a judge of the Common Pleas Court without a jury, and a judgment for the insurer resulted. The judgment entry reads:

'Supplemental petition dismissed. Judgment for the defendant, Employers' Liability Assurance Corporation.'

Such judgment entry is about as short as it could possibly be and states no grounds for the court's action.

Although the trial judge found that McNamara was driving the automobile, which injured West, by authority and with the permission of its custodian Mrs. Robinson, the written memorandum prepared by the judge is, in part, as follows:

'Mrs. Robinson, as far as the record discloses, is neither an officer, director, nor even a stockholder of the named assured, and if under the terms of this policy she could delegate authority and permission to McNamara to operate the automobile, then extending this claim of the plaintiff to its logical conclusion, McNamara having had authority and permission delegated to him by Mrs. Robinson could delegate the authority to another. So the court is forced to the conclusion that the operation of the car by McNamara at the time of the injury did not come within the terms, provisions or conditions of the insurance contract * * *.'

On appeal to the Court of Appeals, the judgment of the Court of Common Pleas was reversed and final judgment entered for West against the insurer, principally upon the authority of Brown v. Kenndey, 141 Ohio St. 457, 48 N.E.2d 857.

The cause is before this court upon the allowance of a motion to certify the record.

Woodle & Wachtel, Cleveland, for appellee.

J. R. Kistner, Cleveland, for appellant.

STEWART, Judge.

The main question for determination is whether under the particular facts of this case, all the testimony having been produced by plaintiff, McNamara was an additional insured under the terms of the liability insurance policy.

The salient facts are as follows:

The H. F. Hammon Development Company, of Florida, a fiduciary organization, was the owner of several automobiles including the one involved in the present case. This latter automobile was the subject of an insurance policy issued by the Employers' Liability Assurance Corporation, Ltd., and the company was the named insured.

One Wallace A. Robinson, according to his testimony, was a trustee, part owner and comanager of the company and for a period of time had consistently used one or another of its automobiles for personal business and pleasure, apparently as a permittee of the named insured. It was his general practice as such permittee to allow his wife to make use of such of the company's cars as he used, which of course made her the permittee of a permittee.

During the spring of 1938, Mr. and Mrs. Robinson drove to Cleveland in the company car involved in the present case. They had formerly lived in that city and Mrs. Robinson had relatives there. Robinson proceeded to New York on personal business and left the automobile in the custody of Mrs. Robinson in Cleveland for her use.

On the evening of June 11, 1938, Mrs. Robinson and McNamara, her nephew, who was about 21 or 22 years of age, attended a picnic at a location known as the European Gardens. They arrived at the Gardens about five o'clock in the afternoon, drank with other companions for several hours, and both become visibly affected.

Olga Linden, whose family owned and operated the European Gardens and with whom McNamara was staying on the day of the injury to plaintiff, testified that she thought both McNamara and his aunt acted as though intoxicated. She testified further that McNamara at times drank quite a bit and had been in other automobile accidents.

Mrs. Robinson, whose testimony was introduced by deposition, proved to be a witness with a poor memory. She said she remembered little or nothing about the matters concerning which she was questioned but this may have been due, in part at least, to the fact that a period of about 12 years had elapsed between the date of West's injuries and the taking of the deposition.

The following answers to questions asked her are typical:

'Q. Had you driven to Cleveland from Florida? You don't recall? A. No.

'Q. You do recall the incident in which Paul was involved in an accident, you say? A. Yes.

'Q. Whose car were you driving at that time? A. Whatever car we had up there, I suppose.

'Q. That's right, whatever car you had in Cleveland at that time? A. Yes.

'Q. Do you recall whether or not it was a Buick automobile?

* * *

* * *

'A. I don't know.

'Q. You don't know. Where were you when you first received word of this accident? A. I don't remember. I wouldn't know.

'Q. Had you been with Paul that evening?

* * *

* * *

'Q. On the evening of the accident, June 11, 1938.

* * *

* * *

'A. Yes.

'Q. And do you remember where? A. No, I don't.

'Q. And do you recall whether or not it was at a picnic?

* * *

* * *

'A. No, I don't remember.

'Q. Well, do you recall the circumstances under which Paul was driving the automobile that evening? A. No.

* * *

* * *

'Q. Do you recall where you were staying or living in Cleveland at the time this incident took place? A. No, I don't.

'Q. Well, I will ask you whether or not it is a fact, Mrs. Robinson, that you turned the keys to the car over to Paul that evening? A. I don't remember.

* * *

* * *

'Q. You wouldn't say it wasn't true, would you? A. I don't remember a thing about the case.

'Q. And do you recall having a conversation with Paul as to where he was to go with the car and what he was to do? A. No, no, sir.'

Jacob Loeffler, one of plaintiff's witnesses, testified that he was with McNamara and Mrs. Robinson at the European Gardens and that Mrs. Robinson said to McNamara, 'Would you take the car and go and get me some cigarettes? I am out of cigarettes.' Loeffler testified further that a few minutes after that conversation, which occurred around eight-thirty or nine o'clock in the evening, McNamara left with a young man called 'Mop Top' and walked up the hill toward the car.

The accident in which plaintiff was injured happened some five or six miles away, and there is no testimony with reference to any of McNamara's actions or to where he had gone or been between the time he left the European Gardens and the time of the accident. Neither McNamara nor any of the persons involved in the accident were called as witnesses.

We now consider the relevant parts of the liability insurance policy involved.

Paragraph III, under the heading, 'Insuring Agreement,' provides:

'Definition of 'assured.' The unqualified word 'assured' wherever used in coverages A and B and in other parts of this policy, when applicable to these coverages, 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 named assured. * * *' Compare Section 6298-7, General Code, 116 Ohio Laws, 218, 221.

In item VI of the policy, it is indicated by an 'X' that the automobile is to be used for 'pleasure and business' as defined in condition 2, which provides:

'Purposes of use defined. (a) The term 'pleasure and business' is defined as personal, pleasure, family and business use.'

As can well be imagined, there is a conflict in the cases with respect to the meaning and scope of language in an automobile liability insurance policy which extends coverage to one who is actually using the automobile 'with the permission of the named insured.'

Naturally the facts in each case are of great importance and in many instances a decision depends on the particular facts developed in the particular case.

The question with which we are here concerned is discussed in an annotation appearing in 160 A.L.R. 1195, and captioned 'Omnibus clause of automobile liability policy as covering accidents...