Opinion
No. 5333.
April 30, 1928.
In Error to the District Court of the United States for the Southern Division of the Northern District of California; George M. Bourquin, Judge.
Action by Arthur Frederiksen against the Employers' Liability Assurance Corporation, Limited, of London, England, and another. Judgment for defendants, and plaintiff brings error. Affirmed.
The owner of an automobile took out combination policies of insurance, one provision whereof was that the word "assured," whenever used, should include also any person or persons riding in or legally operating the automobile, and extending the provisions of the policy to any person legally operating the same, provided such use or operation "is with the permission of the named assured," or "with the permission of an adult member of his family." The policy holder gave to one Bryson, his friend, permission to take the car for the purpose of going to an early morning funeral in Oakland. Bryson obtained the car, attended the funeral services, and went to the cemetery in Oakland. After the funeral was over, he and some of his companions used the car in going around in Oakland until about noon. It then occurred to them that it would be a pleasant afternoon's and evening's amusement for them to keep the car and drive to Livermore, 40 miles away. Bryson endeavored to obtain by telephone the owner's permission, but was unable to get in touch with him. Explaining his further use of the car, he testified, "As long as I was a friend of his, and he was a friend of mine, I just took that chance." About midway on the return trip from the joy ride to Livermore, about 6 o'clock in the evening, there was a collision with another automobile, and the plaintiff, who was in the latter, was injured. He recovered a judgment against Bryson, but was unable to satisfy the same, and thereupon brought in the court below the present action to recover upon the insurance policies. The companies defended on the ground that Bryson was not using the automobile with the owner's consent at the time or place of the accident. On the trial the court granted a motion for a directed verdict in favor of the defendants.
Frank M. Carr and Stanley R. Sterne, both of Oakland, Cal., for plaintiff in error.
Redman Alexander, of San Francisco, Cal., for defendants in error.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
That the trial court properly instructed the jury to return a verdict for the defendants is too plain to require discussion. By no permissible construction of the terms of the insurance policies can it be held that Bryson at the time of the accident was using the automobile with the permission of the insured, or with the permission of any member of his family.
The plaintiff in error relies upon the case of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500. But the facts in that case were distinctly different from those in the case at bar. The policy in that case protected the owner of the automobile and any person driving or legally operating the same, "provided such use or operation is with the permission of the named assured." The insured gave permission to another to use the car for the purpose of going home and changing clothes. Instead of doing that, he drove first to a saloon, there took in three passengers, and drove more than a mile directly away from his home to another drinking place, thence to a third place, then started back toward the garage, intending to find out on the way whether he still had time to go home and change his clothes; if not, to return the car to the garage. The car skidded into a tree, and one of the passengers was killed. The majority of the court, two of the five judges dissenting, held that, the owner having given permission to another to take the car and operate it on the streets of New Haven in order to go to his home, it would be an unreasonable curtailment of the permission granted to hold that any deviation or departure from the purpose so indicated annulled the permission, that the deviations from the permitted use were slight, and in the use of a swiftly moving automobile were too unimportant to have attached to them the import of annulling the protective features of the insurance policy.
It may be conceded that slight deviations by one who has been permitted by the insured to use an automobile for a specified purpose does not destroy the insurer's liability for injuries to the driver or his guests, but that is far from saying that the permission to use an automobile to attend a funeral in the morning in the city in which the insured resides carries with it permission to use the automobile in the afternoon for a joy ride many miles beyond the city limits.
The judgment is affirmed.