Summary
In Brown, a motorist was injured when his vehicle collided with a vehicle owned by W.E. Kennedy. Bennett White was driving the Kennedy vehicle at the time of the accident.
Summary of this case from Metcalf v. YoungOpinion
No. 29389
Decided May 5, 1943.
Motor vehicles — Insurance — Insurer liable where another driving while permittee using automobile, when.
Where an insurance policy covers one who uses the specified automobile with the permission of the named insured, the insurance company is not relieved of liability by reason of the fact that while permittee was using the automobile it was being driven by another at the time of an accident.
APPEAL from the Court of Appeals of Clinton county.
In the principal case a judgment was obtained in favor of James Bernard Brown against Dorothy Kennedy and Bennett White for damages growing out of an automobile accident. The judgment not being paid and thirty days having elapsed, plaintiff below filed a supplemental petition under Section 9510-4, General. Code, against The Celina Mutual Casualty Company which had issued a policy of insurance to W.E. Kennedy as the named insured who was the owner of the automobile occupied by Dorothy Kennedy and Bennett White at the time of the accident.
The company defended on the ground that at the time of the accident the automobile was not being driven by permission of the named insured or any adult member of his family. A jury was waived and the cause submitted to the trial court who made the following findings of fact and law:
"First. That on the fifteenth day of March, 1939, the plaintiff, James Bernard Brown, by next friend, commenced an action in the Common Pleas Court of Clinton county, Ohio, against Dorothy Kennedy and Bennett White, said cause being numbered 14938, on the docket of said court.
"Second. Said Dorothy Kennedy and Bennett White were duly served with summons in said cause, and filed answers therein.
"Third. The charge in the petition against said defendants was that on the second day of June, 1938, he was injured in a collision between the automobile in which he was riding as a guest and the one in which said defendants were riding, the defendant Bennett White being the driver thereof.
"Fourth. Issues were duly joined in said action, and, on the eleventh day of April, 1940, the jury returned a verdict in favor of plaintiff in the sum of $3,750. The defendants duly filed a motion for a now trial, which was overruled by the court, and on the sixteenth day of April, 1940, by the consideration of said court, plaintiff recovered a joint and several judgment said defendants, Dorothy Kennedy and Bennett White, in the sum of $3,750, and costs of suit.
"Fifth. No appeal was taken by said defendants, and, after more than thirty days had elapsed, the plaintiff filed his supplemental petition under the provisions of Section 9510-4 of the General Code of Ohio, making The Celina Mutual Casualty Company a party, and alleging that the automobile driven by said defendant Bennett White and in which said Dorothy Kennedy was riding was the property of one W.E. Kennedy, the father of said Dorothy Kennedy. That the defendant, The Celina Mutual Casualty Company, had issued a policy of insurance on said automobile to the owner thereof, the said W.E. Kennedy, insuring the said Kennedy under various conditions named in said policy. Among other provisions were the following:
" 'The unqualified word "insured" wherever used includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided the disclosed and actual use is with the permission of the named insured, or if the named insured is an individual, with the permission of an adult member of the named insured's household, etc.'
"Sixth. Said supplemental petition set forth the fact that said Dorothy Kennedy was a daughter of the said W.E. Kennedy and a member of his household, and had permission of her father to use said automobile.
"Seventh. The said defendant, The Celina Mutual Casualty Company, admitted the said policy of insurance, and admitted it was in full force and effect on the second day of June, 1938, admitted said Dorothy Kennedy was a daughter of the said W.E. Kennedy. It further alleged that said Bennett White was not a member of the family of said W.E. Kennedy, and did not have the permission of the said W.E. Kennedy to drive said automobile, nor did he have the permission of any adult member of the household of the said W.E. Kennedy. That said automobile was being driven by said Bennett White at said time and place without his knowledge or permission. That he had given instructions that said Bennett White was not to be permitted to drive said automobile. That his said daughter, Dorothy Kennedy, was at said time a minor under the age of twenty-one years.
"Eighth. The plaintiff by way of an amended reply to the answer of said insurance company, alleged that said W.E. Kennedy was the agent of said insurance company. He denied that said Bennett White was driving said automobile without the permission of said insured or an adult member of his household. The said insurance company took full charge of the defense of said action against Bennett White and Dorothy Kennedy, employing the attorney and was at all expense of the defense of said action, and is now estopped to deny liability on said policy.
"Nine. The court finds that said Dorothy Kennedy was nineteen years old in January, 1938. That she was a member of the household of the said W.E. Kennedy. That she had permission of her said father to use and drive said automobile. That she was attending Wilmington College at said time, and using said automobile to go to and from her home in Hamersville, Brown county, Ohio. That at said time said Bennett was a student at Wilmington College, and frequently rode with said Dorothy Kennedy in said automobile and was permitted by said Dorothy Kennedy to drive same, but without the knowledge or consent of the said W.E. Kennedy. That he was driving same, at the time of said collision with the permission of said Dorothy Kennedy. (Italics ours.)
"Ten. That the said, The Celina Mutual Casualty Company, did take charge of the defense of the said action and employed the attorney and incurred all expenses in said defense.
"Law."Applying the law to the above finding of facts the court holds that Dorothy Kennedy was not an adult member of the household of said W.E. Kennedy, and could not give said Bennett White permission to drive said automobile so as to bind the defendant, The Celina Mutual Casualty Company. That said casualty company was not bound to furnish the defense of the said Dorothy Kennedy and Bennett White in said action, and by volunteering so to do did not estop itself from making the defense interposed to the said supplemental petition herein." (Italics ours.)
Upon appeal to the Court of Appeals the judgment of the trial court was reversed and the cause remanded for further proceedings.
The cause is here following the allowance of a motion to certify the record.
Messrs. Hayes Hayes, for appellee.
Messrs. Pulse, Pulse Roades, for appellant.
The principal question to be decided here is whether the term "using" in the insurance policy involved in this case is to be construed as having the limited meaning of driving or operating or is to be given its ordinary signification.
Under the terms of the policy any person "using" the automobile mentioned in the policy with the permission of the named insured becomes an insured whom the insurance company is bound to defend and "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages."
As was pointed out by the Court of Appeals, the instant action against the insurer is not to collect the judgment against the driver of the vehicle, White.
The appellant's answer to the supplemental petition makes no claim that Bennett White was using the automobile. The claim of the answer is that the automobile was being driven by Bennett who had no permission to drive it and that Bennett was operating the automobile after the named insured "had expressly instructed and directed that he not so do."
No question has been raised as to the correctness of the trial court's findings of fact. The trial court found that Dorothy Kennedy was using the automobile although Bennett White was driving it. The trial court did not find that Dorothy's father "had expressly instructed and directed that he [White] not so do." The trial court found that Dorothy Kennedy "had permission of her said father to use and drive said automobile. That she was attending Wilmington College at said time, and using said automobile to go to and from her home in Hamersville, Brown county, Ohio. That at said time Bennett White was a student at Wilmington College, and frequently rode with said Dorothy Kennedy in said automobile and was permitted by said Dorothy Kennedy to drive same, but without the knowledge or consent of the said W.E. Kennedy. That he was driving same, at the time of said collision with the permission of said Dorothy Kennedy."
Appellant claims that by reason of the fact that Bennett White was driving the automobile Dorothy Kennedy was not using it. It would seem, at first blush at least, that the question of whether Dorothy was using the automobile had been settled in the main case and was no longer open to question in the supplemental proceeding. As stated by the Court of Appeals in its opinion: "Evidently a jury must have so found, or there would be no judgment against her, upon which to predicate the instant action against the insurer, who defended the action against her." However, the record before us does not contain the pleadings or sufficient other information pertaining to the main case for us to pass upon the question of res judicata which was not specifically raised either here or in the court below. Appellee did raise the question both here and below of estoppel by reason of the fact that the insurance company made the defense for Dorothy Kennedy. We agree with the courts below that such defense is not sufficient of itself to constitute estoppel.
We do not think that there is any ambiguous or doubtful language to be construed in the instant case.
That the appellant chose the words in its policy advisedly and knew and appreciated the distinction between "using," "driving," and "operating," is illustrated at several places in its policy. The italics used in the following quotations are ours:
In item six where the named insured warrants that except as stated no accidents have occurred "as the result of ownership or operation of any automobile."
In item seven the purposes for which the automobile was to be used are indicated.
Under both coverages A and B the company covenants to pay for damage "caused by accident and arising out of the ownership, maintenance or use of the automobile."
Under exclusions, if the automobile is used in the business of testing, et cetera, unless such use is specifically declared, no liability on the part of the company results.
Again, while the automobile is being driven in a race or by a person in violation of law as to age or occupation no liability attaches to the company.
Under exclusion (f) the company is not liable in respect of certain " operation, maintenance or repair" of the automobile. Under limit of liability (1) the policy provides against compensation for "loss of use."
Item III (1), which is the provision of the policy here in question, differentiates between the use and operation. We quote this provision:
"III. This policy includes the following provisions as respects coverages A and B:
"(1) The unqualified word 'insured' wherever used in coverages A and B and in other parts of this policy when applicable to those coverages includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided the disclosed 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 insured, or if the named insured is an individual with the permission of an adult member of the named insured's household, other than a chauffeur or domestic servant. The provisions of this paragraph shall not apply, however, to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place with respect to any accident arising out of the operation thereof; nor to any employee of an insured with respect to any action brought against said employee by another employee of the same insured injured in the course of such employment on account of an accident arising out of the operation or use of the automobile in the business of such insured." (Italics ours.)
The insurer did not choose to limit its liability to one who operates or drives the automobile but selected a wider term and agreed to insure anyone who used the car with permission.
The fact that Bennett White was driving the car without the knowledge or consent of the named insured does not change the fact that Dorothy was using the automobile at the time of the accident for the purpose of transportation between her home and Wilmington College. (See finding nine, supra.) Had the evidence disclosed that Bennett White was driving alone on some mission of his own, a different situation would be presented. The only question here is whether Dorothy Kennedy was using the automobile with permission of her father, the named insured. That question was settled by the trial court's finding of fact.
We agree with the Court of Appeals that the words "using," "used," and "actual use" do not have the limited meaning of "operating," "operated," or "actual operation." The defense that Bennett White was driving does not negative that fact that Dorothy Kennedy was using the automobile.
Under the findings of fact by the trial court and the terms of the policy Dorothy Kennedy was an insured under the policy and it is the duty of the insurance company under its contract to respond. The insurance company is not being held liable for the use of the car by Bennett White and there is, therefore, no occasion to discuss whether Dorothy was sufficiently an adult member of the family of the named insured to grant permission for use by him.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and BELL, JJ., concur.
WILLIAMS, J., not participating.