Whelchel v. Sommer

• Citation: 413 F.2d 521
• Decision Date: 10 July 1969
• Docket Number: No. 19494.,19494.
• Parties: Sharon K. WHELCHEL, a Minor by Her Mother and Next Friend, Mrs. Noble Dagley, Appellant, v. Ethelyn SOMMER, Administratrix of the Estate of Richard Lee Beezley, Deceased. Allstate Insurance Company, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

413 F.2d 521 (1969)

Sharon K. WHELCHEL, a Minor by Her Mother and Next Friend, Mrs. Noble Dagley, Appellant, v. Ethelyn SOMMER, Administratrix of the Estate of Richard Lee Beezley, Deceased Allstate Insurance Company, Appellee.

No. 19494.

United States Court of Appeals Eighth Circuit.

July 10, 1969.

Thaine Q. Blumer, of Blumer, Wright, Bittiker & Rocha, Kansas City, Mo., for appellant.

R. Lawrence Ward, of Shughart, Thomson & Kilroy, Kansas City, Mo., for appellee; Harry P. Thomson, Jr., Kansas City, Mo., on the brief.

Before VOGEL, Senior Circuit Judge, and MATTHES and BRIGHT, Circuit Judges.

MATTHES, Circuit Judge.

This is an appeal from a judgment in favor of the garnishee, Allstate Insurance Company (hereinafter referred to as "Allstate"), and against the garnishor, Sharon K. Whelchel (hereinafter referred to as "appellant"), rendered September 19, 1968, by the United States District Court for the Western District of Missouri, Honorable Richard M. Duncan presiding.

A factual background is necessary to an understanding of the proceedings which led to this appeal. Sometime prior to December 31, 1960, Orlando Camp purchased a 1955 Chevrolet automobile (hereinafter sometimes referred to as "the Chevrolet," "the Camp automobile," or "the automobile"). He procured from Allstate a policy of liability insurance with himself as the named insured. The automobile was purchased primarily for the benefit of his son, William Camp, who at that time was 18 years old and lived with his family at Springfield, Missouri. Both the father and the son contributed to the purchase price of the automobile, but the father took title in his name. Thereafter William was inducted into the Army and stationed at a missile base in Lawson, Missouri. After his induction he married Sandra Lee Camp, a minor, and on December 31, 1960, they resided at an apartment in Excelsior Springs, Missouri. By this time William had reimbursed his father for the father's contribution toward the purchase of the Chevrolet.

The record discloses and the district court found that prior to William's induction and marriage, he had been directed by his father to allow no other person to drive the automobile. Subsequent to his marriage, William was instructed by his father not to permit Sandra, who did not have a driver's license, to drive the automobile except in case of an emergency. Sandra's testimony was that the only time she used it was to go to the laundry. William testified that he gave Sandra a set of keys for use in case of an emergency but that she "very seldom" drove. The court found that William gave his wife permission to drive the automobile "on a few occasions" to the grocery store. But at no time did he grant any other person permission to use the automobile. There was evidence, however, that "on occasions" persons had driven it without William's knowledge.

On December 31, 1960, the Camps and a number of other young couples attended a New Year's Eve party in the apartment of Mr. and Mrs. Schley, located across the hall from the Camp apartment. About 8:30 that evening Sandra, without the knowledge or consent of William, used the Chevrolet for the dual purpose of taking one of the guests to report for work and picking up another person, Gardner. Sandra left the apartment along with some of the guests, including Mr. Schley and Richard Beezley. With Sandra driving one of the guests was taken to his place of employment. The group them proceeded to Gardner's home. He was not there. Sandra and the other guests then continued to drive around Excelsior Springs and the immediate environs. While driving through a park, the Chevrolet hit an icy spot in the road causing it to skid. Sandra, who suffered from a heart condition, became frightened and hysterical. There was some testimony that she lost consciousness. Schley assumed operation of the automobile, and the group continued to drive about Excelsior Springs and the surrounding country with Sandra still in a state of hysteria.

After the group left the Schley apartment, Gardner arrived at the party. When Sandra and her companions failed to return within an hour, the wife of one of the men became alarmed and left with several others in another car to search for them. The Camp automobile was located by the searching party, and was followed into the country several miles where it entered a schoolyard. The other car also stopped at the schoolyard. Sandra was taken from the Chevrolet and placed in the other automobile. At this point there was some shifting in the occupants of the two automobiles. Beezley, a friend of William, began driving the Chevrolet. While attempting to pass the other automobile, Beezley lost control of the Chevrolet and had a serious accident which caused his death and injuries to appellant.

Appellant, a citizen of Missouri, brought suit against the administrator of Beezley's estate in the Circuit Court of Buchanan County, Missouri, and on January 30, 1964, obtained a judgment of $25,000 for personal injuries sustained in the accident. The judgment being unsatisfied by the Beezley estate, appellant summoned Allstate as garnishee, contending that Beezley was an additional insured under the liability policy issued to Orlando Camp. Allstate, incorporated under the laws of Illinois and not having its principal place of business in Missouri, removed the garnishment proceedings to the federal district court on the ground of diversity of citizenship.

The omnibus clause of the liability policy insures:

"1. The named insured with respect to the owned or a non-owned automobile; * * *

3. Any other person with respect to the owned automobile, provided the actual use thereof is with the permission of the named insured. * * *"

At the trial, appellant contended that Beezley was an additional insured under the terms of the omnibus clause. Judge Duncan held that despite Orlando Camp's specific instructions that no person other than William Camp was to drive the Chevrolet, William did have implied authority to authorize others to use the vehicle because of the complete control he exercised over it; that in spite of this, neither Orlando nor William Camp authorized Sandra to drive the automobile except under emergency conditions; that William was not aware that Sandra had taken the automobile the night of December 31, 1960, though he may have known she was leaving; that William did not authorize any other person to drive it; and that there was no implied authority for Beezley to drive because of the "emergency."

Concluding that Beezley was not an additional insured under the omnibus clause, Judge Duncan determined that the garnishee was not liable to the garnishor and entered judgment in favor of Allstate. From this judgment, appellant has appealed contending, alternatively, that Beezley is an additional insured under the policy in question because: (1) he was driving with the implied permission of the legal owner and named insured; (2) the actual use of the automobile was for the benefit of William Camp; or (3) the abandonment of the automobile in an isolated rural area created an emergency from which permission for Beezley to return it to William can be implied.

The parties agree that Missouri law controls. We therefore delineate the position taken by the Missouri courts on the question of implied permission under the omnibus clause. The St. Louis Court of Appeals recently stated:

"There is no question that the permission provided for in the omnibus clause can be either express or implied from the conduct of those in position to give it. But as a general rule the person claiming such permission must prove it, and no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured. Varble v. Stanley, Mo.App., 306 S.W.2d 662; McKee v. Travelers Insurance Company, Mo. App., 315 S.W.2d 852. Whether permission be expressly granted or impliedly conferred, it must originate in the language or conduct of the named insured or someone having authority to bind him in that respect. Hooper v. Maryland Casualty Company, 233 N.C. 154, 63 S.E.2d 128. Usually, an implied permission arises from a course of conduct of the parties over a period of time prior to the use in question. Alabama Farm Bureau Mutual Casualty Insurance Company v. Robinson, 269 Ala. 346, 113 So.2d 140." Hanover Ins. Co. v. Abchal, 375 S.W.2d 605, 608-609 (Mo.App.1964).

The Missouri Supreme Court, in Mazdra v. Selective Ins. Co., 398 S.W.2d 841 (Mo.1966), adopted the substance of the above-quoted language and added that "there must be knowledge of the facts in order that there may be acquiescence of a named insured which would give rise to an implied permission of another to use an insured automobile." Id. at 844. Furthermore, the Springfield Court of Appeals adds that:

"* * * the permission contemplated by the omnibus clause is something more than mere sufferance or tolerance without taking steps to prevent, that term being used rather in the sense of leave, license or authority with the power to prevent." Bourne v. Manley, 435 S.W.2d 420, 427 (Mo. App.1968).

That same court has spoken decisively on the problem now before us:

"What we have to consider here, in a legal sense, is the operation and effect of this omnibus clause in a `second permittee\' or `sub-permittee\' situation; that is, whether the coverage of an omnibus clause extends to a third person operating the insured automobile with the consent or at the direction of a permittee of the named insured. * * * Our courts have not gone so far as to hold — * * * that when the named insured grants his permittee broad and unfettered dominion over his insured automobile, he also impliedly authorizes the permittee to allow a third person to use it and thus to constitute the second permittee an additional insured, though that view is apparently taken by a growing number of courts. * * * At this writing

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