Winterton v. Van Zandt
| Decision Date | 13 November 1961 |
| Docket Number | No. 48226,No. 1,48226,1 |
| Citation | 351 S.W.2d 696 |
| Parties | Alvae WINTERTON, Respondent, v. Boydie Clay VAN ZANDT, Defendant, and Farmers Insurance Exchange, a Reciprocal Inter-Insurance Exchange, Garnishee, Appellant |
| Court | Missouri Supreme Court |
William G. Johnson, Versailles, Donald E. Willson, S. David Trusty, Kansas City (Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel), for appellant.
William J. Cason, Kelso Journey, Clinton, for respondent.
Garnishment. On January 23, 1953, plaintiff Alvae Winterton, a resident of the State of Iowa, recovered judgment by default in the Circuit Court of Henry County against Boydie Clay Van Zandt in the sum of $14,250 for personal injuries and property damages sustained in a collision of a motor truck owned and operated by plaintiff and an automobile operated by defendant but owned by one Fred Marsh. Thereafter, plaintiff, acting under a general execution issued on said judgment, initiated this garnishment proceeding against Farmers Insurance Exchange seeking to enforce payment thereof in accordance with an 'omnibus clause' contained in a policy of liability insurance issued by Exchange to Marsh covering his liability for bodily injuries and property damages arising out of the ownership, maintenance or use of the aforesaid automobile. Garnishee admitted that said policy was in full force and effect but denied liability to plaintiff under its terms and provisions. Trial of that issue to a jury in Morgan County on change of venue from Henry County resulted in a judgment for plaintiff against garnishee in the sum of $12,500 with 6% interest thereon from January 23, 1953, in the sum of $5,250, total $17,750, from which judgment garnishee has appealed. The amount in dispute vests this court with jurisdiction of that appeal.
The policy in question obligates the insurer to pay on behalf of the insured all sums which he shall become obligated to pay not exceeding $10,000 for bodily injuries sustained by any one person and not exceeding $5,000 for destruction of property caused by accident and arising out of the ownership, maintenance or use of the automobile. The 'omnibus clause', insofar as here material, provides:
'With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the automobile * * *, provided the actual use of the automobile is by the named insured or with his permission * * *.'
It is admitted that defendant came into possession of Marsh's automobile in Kansas City, Missouri, on September 9, 1952, and that on said date he drove it into collision with plaintiff's truck in Henry County, Missouri, a distance of some sixty miles from Kansas City. Garnishee's first contention is that the trial court erred in refusing to sustain garnishee's motion for a directed verdict filed at the close of all of the evidence for the reason that under the evidence most favorable to plaintiff Marsh had given defendant permission to use his car only for the purpose of driving it four blocks to a grocery store to make a purchase and thereupon to return with said purchase and that there was no evidence that the permission so granted authorized defendant to make a journey on his own account into Henry County, a distance of sixty miles from Kansas City.
The evidence viewed in the light most favorable to plaintiff supports a finding of the following facts: On September 9, 1952, Boydie, more than 30 years of age, resided in Kansas City with his brother, Ben Van Zandt, and the latter's wife, Helen, and their child in a small apartment. On September 9, Boydie did not go to work. After breakfast, about 9 o'clock, he, with the Van Zandts' small child, went out for a stroll. About 10 o'clock, they returned and Boydie asked Mrs. Van Zandt if he could bring a friend of his, Fred Marsh, whom Mrs. Van Zandt did not know, to the apartment to shave, saying they were going 'some place' and that he (Marsh) did not want to go all the way home. Mrs. Van Zandt consented and Boydie left the apartment. He and Marsh appeared at the apartment at about 2 o'clock in afternoon. Both had been drinking and they brought beer with them. Boydie introduced Marsh as an 'old friend' and they talked within the hearing of Mrs. Van Zandt about places they together had visited. Mrs. Van Zandt was engaged in cooking a pot of pinto beans in preparation of the evening meal. Marsh said he could make a good Italian dish and asked for some spaghetti and macaroni, which she furnished and Marsh and Boydie 'mixed it all up.' They decided there was not enough spaghetti, so Marsh gave Boydie several bills and told him to go to the store and get more. When Boydie left, Mrs. Van Zandt, her small son and Marsh were left alone in the home.
The store was four blocks from the apartment and Boydie came back in about 20 minutes. During Boydie's absence, Marsh sat at the kitchen table drinking beer. When Marsh took over the cooking, he had asked for onions, but none were at hand, so Marsh, upon Boydie's return, told him to go back to the store to get some. Boydie said it was too far to walk and said, 'I am going to take your car.' Marsh's car keys were then in front of him on the kitchen table at which he sat. Marsh picked up the keys, held them up, nodded affirmatively at Boydie and laid them down. Boydie picked up the keys. Mrs. Van Zandt asked Boydie not to leave her alone. Boydie and Marsh talked privately and Mrs. Van Zandt heard Marsh say, 'If you are going, you better get going.' Boydie and Marsh then went into a restroom in the hall, talked some more, and Boydie left. Mrs. Durham, who lived in an upstairs apartment, came into the Van Zandt apartment about that time and Mrs. Van Zandt asked Mrs. Durham to stay with her.
Mrs. Van Zandt and Mrs. Durham went into the kitchen, where Mrs. Van Zandt said to Marsh, 'You know him (Boydie) better than I thought you did or you wouldn't let him have your car.' Marsh replied, 'Boydie is all right, he will bring it back.' Mrs. Van Zandt told Marsh, 'I'll give him twenty minutes to get back; if he doesn't get back in 20 minutes, your car is gone.' Marsh said, 'Oh, he'll be back.' When 30 minutes had passed, Marsh looked at his watch and said, 'Well, 30 minutes is up, but I will give him a little longer.' Marsh, however, then went into the front room and lay upon the couch and went to sleep. None of the food which Marsh undertook to prepare was ever eaten. Mrs. Van Zandt, her small son and Mrs. Durham left the apartment. They went for a walk and then waited in front of the apartment for the return of Mrs. Van Zandt's husband from work. Upon his return about 4:30 p. m., he was advised of the situation. He went upstairs, succeeded in arousing Marsh, and said, 'Have you called the police about your car?' Marsh said, 'Why no, I haven't called the police, Boydie will be back.' Mr. Van Zandt told him he could use a phone at the end of the hall and urged him to call the police, but Marsh insisted that 'Boydie is a nice guy and he will be back.' Eventually, Marsh left the apartment about 5:20 p. m. and returned about 6:30 p. m. Asked if he had called the police, he stated he had not, but said, 'The State Patrol called me and told me that Boydie had had a wreck in my car near Clinton.' He made no contention that Boydie had stolen his car and said nothing about having him arrested. The Van Zandts did not see him again until about 7:30 p. m. the next day when he returned with a man and lady from an insurance company.
Garnishee insists that under this evidence Boydie Cited in support of that contention are: 5 A.L.R.2d, 1. c. 624-626, 636; Guthrie, Admr. v. Holmes, 272 Mo. 215, 198 S.W. 854; McKee v. Travelers Insurance Co., Mo.App., 315 S.W.2d 852; Speidel v. Kellum, Mo.App., 340 S.W.2d 200.
The annotation found in 5 A.L.R.2d, at pages 600-668, is exhaustive and generally informative but, inasmuch as it treats exclusively with the proper construction to be placed upon omnibus clauses in liability policies where the vehicle was being driven by a servant with the alleged permission of the master, it is not particularly helpful in the instant case. As stated in the beginning of the annotation, l. c. 602, '[T]he master and servant relationship gives rise to a number of distinct and peculiar problems regarding the permissive use of the employer's vehicle which do not exist in cases where the relationship is more of a social nature.' Thus, the annotation is primarily concerned with the varying and conflicting rules established by the appellate courts of our sister states in determining the effect upon the insurer's liability under the policy in cases where the servant in shown to have deviated from the course of the employment which permits his use of the vehicle. Brief mention of these conflicting rules will suffice. The courts of a number of states hold that even in cases involving a master and servant relationship the omnibus clause in automobile liability policies is as much for the benefit to the general public as for the benefit of the additional insured and they construe such clauses to mean that if the employee has express or implied permission of the owner initially to operate the vehicle, any operation thereof by the employee is considered to be within the scope of the permission granted, regardless of how grossly the terms of the permission originally granted may have been violated. Some courts adopt the so-called conversion rule in such cases, namely, that where the use of the vehicle exceeds the...
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