RUBY ROBINSON
v.
FIDELITY AND CASUALTY COMPANY OF NEW YORK.
Record No. 3564.
Supreme Court of Virginia.
January 16, 1950.T. Helm Jones and William C. Worthington, for the plaintiff in error.
Williams, Cocke & Tunstall, for the defendant in error.
Present, All the Justices.
1. Where a motion to strike plaintiff's evidence and enter judgment for defendant is made and sustained when plaintiff rests, such evidence on appeal must be considered under a rigid application of the rule which would have been applied if there had been a demurrer to the evidence, although the case was heard by the trial judge as a jury, for the case is withdrawn from consideration of the judge as a jury when such a motion is sustained.
2. Defendant's insured told a girl with whom he had been on intimate terms that he was leaving his car with her when he went to sea, "but did not want to come back and find it wrecked". She took possession of and used the car. Defendant argued that the fact that insured told the girl he was leaving the car with her was not direct evidence that he actually did so, but considered in connection with the fact that after he had gone she was in actual possession of it, it was sufficient proof of the fact that he turned it over to her for her own general use, and until his return, therefore, she stood in insured's shoes.
3. Under the facts of headnote 2, on the day of the accident out of which plaintiff's action grew, a man with whom the girl began to go steadily after insured's departure was driving the car for her, accompanied by her, and left it at a garage for repair, taking her home in another car. He returned to the garage for insured's car on her instructions, and a short time thereafter, while he was driving it, the accident occurred. Defendant contended that, even if insured turned the car over to the girl, she was a mere bailee and not clothed with authority to permit its operation by her friend. But considering the relationship between insured and the girl, she cannot be said to have been a mere bailee, but was vested with general authority over the use and operation of the car and could permit its use by others under appropriate circumstances. The action of the friend in driving the car from the garage was an accommodation to and for the benefit of the girl, and under these circumstances, he must be considered as operating the car with the implied permission of insured.
4. Under the facts of headnotes 2 and 3, the driver of the car testified that before returning with it from the garage he made a call on business of his own and that the route he followed was farther than if he had gone straight to the girl's home. Defendant argued that, although the girl might have authorized his use of the car, the driver was using the car at the time of the accident for his own ends and not pursuant to such authority. But the call made by the driver did not, as a matter of law, revoke his authority to drive. There was no evidence that the girl gave him any instructions as to his line of travel or forbade his attending to such personal affairs as might be consistent with driving the car home. Such a slight deviation from that route was too unimportant to have attached to it the import of annulling the protective features of the insurance policy as a matter of law. Whether the driver had implied authority to use the car for the purpose of making his own call was a jury question.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. O. L. Shackleford, judge presiding. The opinion states the case.
STAPLES
STAPLES, J., delivered the opinion of the court. *370
The question here is whether the driver of the automobile, through whose negligence the plaintiff suffered personal injuries, was operating it with the implied permission of the insured, its owner. Previous to the institution of this action the plaintiff had recovered a judgment against the driver, Will D. Beasley, for $1,200 damages but, being unable to collect it from him, she sued the defendant insurance company on a policy of automobile liability insurance covering the car and issued to its owner William R. Willis.
When the plaintiff rested, the trial court sustained a motion of the defendant to strike out her evidence and enter final judgment in its favor. The plaintiff's evidence must therefore be considered under a rigid application of the rule which would have been applicable if there had been a demurrer to the evidence. Jones Hanbury, 158 Va. 842, 164 S.E. 545.
The defendant insists that this rule is not applicable here because, by agreement, the case was heard by the trial judge as a jury. State Farm Mut. Ins. Co. Cook, 186 Va. 658, 43 S.E.(2d) 863, is relied upon in support of this position. In that case, however, the judge passed upon the merits and considered the evidence of both plaintiff and defendant. There was no motion to strike. Here the effect of such motion was to reserve to the defendant the right to introduce additional evidence if it should be denied. Since it was sustained it withdrew the case from consideration by the judge as a jury.
Considering the evidence, therefore, from the standpoint most favorable to the plaintiff, it may be said that the following facts are established:
The insured, Wills, the owner of the automobile, was in the Merchant Marine, and in the early part of February, 1948, he boarded a ship and went to sea. Prior to his departure, he had been keeping steady company with a girl who was generally known by the name of Jean Wills and who was registered under the name of "Mrs. Jean Wills" at the DeLuxe Cabins where she lived. There was no evidence, *371 however, that she was actually married to Wills, or that he lived with her as man and wife. She was working as a waitress at a restaurant known as the Blue Bird Inn on the Virginia Beach Boulevard. Beasley, who was driving the Wills car when the accident occurred, also was working there and frequently saw the insured and the girl Jean together in the restaurant. On the night before Wills shipped out, he told Jean that "he was leaving the car with her, but he did not want to come back and find it wrecked." Beasley had become well acquainted with Wills and had many times ridden in the car with him and Jean before he went to sea. After Wills left, Beasley started going with Jean, who had taken possession of the car and was using it while Wills was gone. On the day of the accident Beasley had been driving the car for Jean. After they had stopped at a hotel on Main Street in the city of Norfolk, they found the car would not start. Thereupon Beasley phoned his brother, who ran a garage, and he towed the car to his garage on Brambleton Avenue. It was estimated that it would require about two hours to fix the car, so Beasley's brother allowed them to use his car to take Jean out to her home at the DeLuxe Cabins. Later Beasley returned to the garage, left his brother's car, and drove off in the insured's car which Jean was using. This was in accordance with Jean's instructions. A short time thereafter, while Beasley was driving the car over the Campostella bridge, the collision occurred which resulted in the plaintiff's injuries.
The defendant argues that the fact that Wills told Jean he was leaving the car with her is not direct evidence that he actually did so. But considered in connection with the fact that after he had gone she was in actual possession of the car, it is sufficient proof of the fact that he turned the car over to her for her own general use during his absence. Therefore, until his return, she stood in the shoes of the owner. Liberty Mut. Ins. Co. Tiller, 189 Va. 544, 53 S.E.(2d) 814; Employers' Liability Assur. Corp. Carroll
(C.C.A., 4th Cir.), 139 F.(2d) 427. *372
The defendant also contends that, even if the insured, Wills, did turn the car over to Jean, she was a mere bailee and was not clothed with authority to permit its operation by Beasley. We think, however, under the circumstances of this case, considering the relationship between the insured and the girl Jean, she cannot be said to have been a mere bailee but was vested with general authority over the use and operation of the car and could permit its use by others under appropriate circumstances.
The facts in this case do not show, however, that she loaned the car to Beasley for his general personal use. At the time the car was taken to the garage Jean was an occupant and Beasley was driving it at her request. When Beasley's brother loaned them his car to take Jean to the DeLuxe Cabins, where she was living, it was understood that he would return his brother's car and at the same time drive the Wills car back to the cabins. It appears, therefore, that the action of Beasley in driving the car was an accommodation to and for the benefit of Jean. Her authority to thus avail herself of the help of Beasley in connection with the repair of the car is amply sustained by the evidence. Under these circumstances, Beasley must be considered as operating the car with the implied permission of the insured.
The defendant further takes the position that, notwithstanding this authority, at the time of the accident Beasley was actually using the car for his own purpose and not pursuant to the permission given him by Jean. Beasley testified that before returning to the DeLuxe Cabins he had to go over to his brother's home in Berkley, and that this route of returning to the cabins was two or three miles further than if he had gone straight down Princess Anne Road. The accident occurred while he was traveling the longer route. Did this circumstance, as a matter of law, revoke Beasley's authority to drive the car? We think not. There is no evidence that Jean gave him any instructions as to his line of travel or forbade his attending to such personal *373 affairs as might be reasonably consistent with driving the car to her home. The evidence is that Beasley was going with the girl and it indicates a very close relationship between them had existed for some months. It is within the province of a jury to determine whether, while he was doing her the favor of bringing her car to her, she would object to his going two or three miles out of the direct route to attend to a personal errand. We think such a slight deviation from that route was "too unimportant to have attached to (it) the import of annulling the protective features of the insurance policy" as a matter of law. See State Farm Mut. Ins. Co. Cook, 186 Va. 658, 43 S.E.(2d) 863; Hinton Indemnity Ins. Co., 175 Va. 205, 8 S.E.(2d) 279.
In the final analysis, whether, under the circumstances, Beasley had implied authority to use the car for the purpose of going by his brother's home is a jury question. Hinton Indemnity Ins. Co., supra. It follows that it was error for the trial court to strike out the plaintiff's evidence and the case must be reversed and remanded for a new trial.
Reversed and remanded.