This action was instituted by Vercie Hall Adkins to recover from the Inland Mutual Insurance Company the amount of a judgment and costs theretofore rendered in her favor and against Thomas Coffman in the Circuit Court of Fayette County. There was a jury verdict in favor of the plaintiff and judgment rendered thereon for the sum of $5,000.00, to which judgment this writ of error is prosecuted.
In April, 1941, defendant in error obtained her judgment in the amount of $5,000.00 against Coffman in an action of trespass on the case for injuries sustained by her when she was struck by an automobile driven by Coffman, on November 28, 1940. The circumstances under which the accident occurred are not here involved, aside from those relating to the reason for Coffman's operation of the car. Execution on the judgment was returned unsatisfied and this action was brought against the Insurance Company, the declaration alleging that the company was liable for payment of the judgment under a public liability policy issued in compliance with the "Financial Responsibility Act," (Ch. 61, Acts 1935; 1937 Michie's Code, 17-20) to Earl Canterbury.
The automobile involved in the accident was registered in the name of Earl Canterbury and was specifically covered by the policy sued on. It was shown that James Canterbury paid the deferred purchase installments on the car as well as the insurance premiums, and that his *Page 390 operator's license had been revoked because of a conviction of driving while intoxicated some time prior to the occurrences herein mentioned. Under the terms of the Financial Responsibility Act, and the issuance of the policy, James obtained from the State Road Commission an operator's license, restricted to the operation of the car covered by the policy. On the day of the accident, Coffman accompanied James in driving from Glen Jean to Minden, both in Fayette County. James stopped near a drug store and Coffman went into the store, remaining there five or ten minutes. When he returned to the car, finding James in an intoxicated condition and asleep or "passed out," Coffman told James he would drive the car home. Receiving an unintelligible reply, Coffman took the wheel and had driven about two hundred yards when the accident took place. It appears that the car was kept at the Canterbury home, where both James and Earl resided, and that Coffman made frequent trips therein with James, operating the same on several occasions.
The plaintiff in error asserts that Earl Canterbury alone is the "named insured", that Coffman had no permission from Earl, express or implied, to drive the automobile, and therefore that it is not liable for the judgment rendered against Coffman. This is in substance the basis of the assignments of error. The defendant in error asserts that the undisputed evidence shows that James Canterbury was, in fact, the owner of the automobile, and that by the provisions of Chapter 61, Acts 1935, he is, in fact, the named insured, and that the circumstances under which Coffman drove the automobile away from the drug store in the Town of Minden amounted in law to permission given by James Canterbury, and therefore the insurance company is liable.
The pivotal question is, does the policy by its terms or by implication cover the liability of Thomas Coffman under the circumstances hereinabove stated? Chapter 61, Acts 1935, is a species of uniform legislation which has been approved as a constitutional enactment by this *Page 391 Court in the case of Nulter v. Commissioner, 119 W. Va. 312,193 S.E. 549, 550, 194 S.E. 270. As stated by Judge Hatcher in the Nulter case, "The declared purpose of this statute is to protect the public on the highways against the operation of motor vehicles by 'reckless and irresponsible persons' and thus is referable to the police power of the State."
The liability of plaintiff in error must be measured by its policy, unless the scope thereof is broadened by the statute, the expressed intent of the policy being to comply with its provisions. Section 2 provides that a suspended license "shall remain so suspended * * * until he shall have given proof of his ability to respond in damages for any liability thereafter incurred, resulting from the ownership, maintenance, use or operation thereafter of a motor vehicle * * *". The same section further provides that if the commissioner finds that the guilty person, on the occasion of the offense was a member of the household of the owner of the vehicle, and that there was not, at the time of the offense, a motor vehicle registered in the name of the guilty person, such person shall be relieved of the necessity of giving proof in his own behalf so long as he is operating a vehicle for which the owner has given proof; by that section the commissioner shall designate the restrictions as to operation on the face of the operator's license issued to the guilty person.
On July 27, 1940, plaintiff in error filed with "The Safety Responsibility Department" of the State Road Commission an "Owner's Policy Certificate", certifying that it had issued "a Motor Vehicle Liability Policy, as defined in Chapter 61, Laws of 1935", to Earl Canterbury covering the Ford Tudor sedan herein involved. This certificate was indorsed as "intended to relieve a household member or an employee who is not a motor vehicle owner," James Canterbury being named in the indorsement. Accompanying a photostatic copy of this certificate, as introduced in evidence, is the certificate of the Secretary of the State Road Commission, stating the same to be a correct copy of "an Owner's Policy Certificate issued in the *Page 392 name of Earl Canterbury and endorsed to cover James Canterbury * * * as household member * * * filed * * * as proof of financial responsibility for James Canterbury." It is apparent from this latter certificate that the Road Commissioner treated the policy and plaintiff in error's certificate as given under the provisions of section 2 of the act, and there is nothing in the record to otherwise show the facts surrounding the offense committed by James.
In the policy itself, the name of James Canterbury appears only in an indorsement attached thereto which deletes paragraph VII, relating to the "Use of Other Private Passenger Automobiles," as to James Canterbury, in view of the the fact that the operator's license issued to James limited his operation to the one automobile described in the policy.
From the foregoing it appears that the policy covered any operation of the vehicle herein involved, by James Canterbury, in fact, the brief of counsel for plaintiff in error so admits: "If James Canterbury had been driving the automobile at the time the plaintiff was injured, the policy would have covered the accident * * *." Such coverage would necessarily be based upon the operation of the vehicle with the permission of the owner and named insured, Earl Canterbury, in view of the provisions of section 2, hereinbefore referred to, and the policy itself. In paragraph V of the "Additional Insuring Agreements" in the policy, it is stated that the operation of the vehicle is covered as to public liability, if, among other conditions, "the actual use is with the permission of the named insured." Although the word "insured" without further qualification should apply to any person entitled to protection under the policy, including a "named insured," the latter term can apply only to the person named as the insured.Madison v. Steller, 226 Wis. 86, 275 N.W. 703. As hereinbefore pointed out, Earl Canterbury was the named insured and James' name does not appear in the policy, except in the indorsement deleting paragraph VII as to him. *Page 393
In section 14 of the Act, it is provided that the "liability of the insurance carrier * * * shall become absolute whenever loss or damage covered by such policy occurs," and further that the policy, the written application, if any, and any indorsement which does not conflict with the provisions of the act shall constitute the entire contract between the parties. Every motor vehicle liability policy under the act becomes subject to these provisions whether or not contained therein. Code, 17-20-14. "Named Insured," as used in this policy, can refer to but one person, Earl Canterbury, and since the record includes his undisputed testimony that he did not give Coffman permission to operate the automobile, we must hold that the actual use thereof at the time of the accident was without the permission of the named insured. Because Earl's testimony on this point is undisputed, the lower court did not err in refusing defendant in error's instruction No. 1, which, as originally offered, would have submitted to the jury the question of whether Coffman was driving with Earl's permission. This refusal was a cross-assignment of error.
Otherwise, there can be no recovery in this action. We find nothing in the act which would warrant extension of the policy terms and as stated, section 2 of the act authorized this type of coverage for a member of the household who is not the owner of a motor vehicle. On the question of ownership, it may be true that James made payment for the car in question, but this fact can not operate to make James the "named insured." Note also the statement contained in "Item 5" of the policy: "The named insured is the sole owner of the automobile."
The case of Eagon v. Woolard, 122 W. Va. 565, 11 S.E.2d 257, 135 A.L.R. 970, cited by defendant in error, does not apply to this case, in our opinion. The "family car doctrine" is not applicable to the facts herein, and, even if such facts did justify its application, the principles of the Eagon case, based upon direction and control of the driver by the member of the family in charge of the car, would find no support herein. Though it can be asserted with *Page 394 considerable force that James Canterbury by reason of his "passed out" condition gave Coffman implied permission to operate the car, the elements of direction and control would necessarily be lacking. Cain v. American Policyholders Ins.Co., 120 Conn. 645, 183 A. 403.
For the reasons assigned, the judgment of the Circuit Court of Fayette County is reversed, the verdict set aside, and the case is remanded for a new trial.
Reversed and remanded.