Western Cas. & Sur. Co. v. Anderson

Decision Date05 January 1979
Docket NumberNos. 12294,12298,s. 12294
Citation273 N.W.2d 203
CourtSouth Dakota Supreme Court
PartiesWESTERN CASUALTY & SURETY COMPANY, Plaintiff and Respondent, v. Alan ANDERSON, Bradley A. Minor, Kevin Scheopf, Kathy Tunender and Robert E. Terwilliger, Special Administrator of the Estate of Lesa E. Terwilliger, Deceased, Defendants and Appellants.

Richard O. Gregerson of Woods, Fuller, Schultz & Smith, Sioux Falls, for plaintiff and respondent.

James E. Kessler of Erickson & Kessler, P. C., Brookings, for defendant and appellant Alan Anderson.

Thomas H. Muilenburg, Sioux Falls, for defendant and appellant Kevin Scheopf.

Thomas M. Issenhuth of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant Kathy Tunender.

J. B. Lammers of Lammers, Lammers & Kleibacker, Madison, for defendant and appellant Robert E. Terwilliger, Special Administrator of the Estate of Lesa A. Terwilliger, deceased.

WOLLMAN, Chief Justice.

This is an appeal from a judgment declaring that an insurance policy issued to appellant Anderson by Western Casualty & Surety Insurance Company (respondent) did not extend coverage for injuries incurred in an accident in which Anderson was driving appellant Brad Minor's car. The trial court found that: (1) Anderson was driving the car at the time of the accident, and (2) Anderson did not have Minor's permission to drive the car. The driver, the passengers in the car, and the owner of the car appeal. We reverse.

Minor testified before the trial court and was deposed on various occasions by the parties to this action. There were numerous contradictions in his evidence. These contradictions are glaringly apparent, both when his trial testimony is compared to his deposition testimony and when his trial testimony is reviewed alone. The trial court, who had an opportunity to observe the demeanor of the witness, found that Minor's testimony was not credible and therefore applied the maxim "falsus in uno, falsus in omnibus" to all of his testimony.

Looking only to the testimony of Anderson and Kevin Scheopf, who was a passenger in the Minor vehicle at the time of the accident, the evidence shows that Minor brought his car to Anderson for repairs. Anderson believed that he had Minor's permission to use the car as part of the repair agreement. Anderson testified that he had postponed working on his own car in order to work on the Minor car, something he would not have done unless he could use the Minor car for general transportation. In a prior unsworn statement taken a short time after the accident, Anderson stated that he did not have Minor's permission to use the car. (The record reveals that Anderson received head injuries in the accident, which affected his memory for a period of time following the accident). Anderson testified that four days prior to the accident Minor told him not to drive the car; however, when the sheriff came out to Minor's farm to take Minor to jail, Minor left Anderson in control of the car and in fact watched him drive away. * Minor never asked Anderson to return the keys to the car.

On cross examination, Anderson gave the following reasons why be believed he had permission to drive the car for personal use: (1) After he had finished working on the car, Minor continued to allow him to drive it; (2) after Minor wanted the car parked for a while, Anderson removed his personal belongings from the car but Minor did not pick up the keys; (3) Minor expressly allowed Anderson to drive the car to Watertown after Minor had been placed in jail; and (4) Anderson still had the keys and Minor knew that he was driving the car during the period of time in which the accident occurred. On the evening of the accident, Anderson used the car to take Minor's girl friend to the home of Minor's parents, who observed Anderson driving the car and did not question his authority to do so.

It seems clear that the first time Minor was jailed he instructed Anderson to leave the car parked; however, after being released from jail Minor specifically asked Anderson to drive the car, and in fact at the time of Minor's second arrest Anderson was driving the car and Minor was a passenger.

Kevin Scheopf testified that he knew Minor had given the car to Anderson and that Anderson had a right to use it. Scheopf...

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10 cases
  • American Family Mut. Ins. Co. v. Purdy
    • United States
    • South Dakota Supreme Court
    • 29 Abril 1992
    ...exclusion as a means of avoiding coverage, the insurer has the burden of proving that the exclusion applies. Western Cas. & Sur. Co. v. Anderson, 273 N.W.2d 203, 205 (S.D.1979). For the exclusion to apply in this case, it must be shown that Purdy expected or intended injury to the children-......
  • American Family Ins. Group v. Howe
    • United States
    • U.S. District Court — District of South Dakota
    • 16 Abril 1984
    ...Union Property & Casualty Co. v. Ronholm, 153 N.W.2d 322 (N.D.1967) (cited by the S.D. Supreme Court in Western Casualty & Surety Company v. Anderson, 273 N.W.2d 203 (S.D.1979)); Brochu v. Taylor, 223 Wis. 90, 269 N.W. 711 To constitute express permission the evidence must be of an "affirma......
  • State Farm Mut. Auto. Ins. Co. v. Ragatz
    • United States
    • South Dakota Supreme Court
    • 9 Septiembre 1997
    ...a permittee is deemed to have the implied permission of the owner under an insurance policy's omnibus provision. Western Cas. & Sur. Co. v. Anderson, 273 N.W.2d 203 (S.D.1979). The Western Court recognized the "wide variation" 1 among the states in defining the scope of implied permission a......
  • Estate of Trobaugh v. Farmers Ins. Exch.
    • United States
    • South Dakota Supreme Court
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    ...owner and acquiesced in by him that would lead to an application of permission for a particular venture." Western Casualty & Surety Co. v. Anderson, 273 N.W.2d 203, 205 (S.D.1979). An owner's failure to object to the use of a vehicle will not in and of itself be deemed consent. Id. The evid......
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