Associated Indemnity Corp. v. Miller-Campbell Co.

ON MOTION FOR REHEARING

PER CURIAM:

In its motion for rehearing, defendant Truck Insurance points out that its policy provides that “the insurance does not apply to bodily injury or property damage arising out of the use of a non-owned or hired automobile unless it is with the permission, or reasonably believed to be with the permission, of the owner” and that in this instance Chrysler Leasing Corporation (the owner) never gave its consent that the station wagon could be sold or demonstrated before it was removed from the rental program. While this exclusionary clause was not raised by Truck Insurance in its pleadings nor briefed or argued to the court as part of this appeal, we will respond to it as it does bear directly on the question of whether Mrs. Thurston was covered by the policy, the heart of the controversy.

The evidence in the case was that the way the DRAG arrangement “worked” in practice was that Miller-Campbell “leases the car for a minimum of four months,” at the end of which time “we usually just sell it” and “Chrysler gives an early retirement” and the dealer sends the money to pay for the car; that “we automatically sell these cars any time they’re four months old and we have a buyer for them”; “if we find a buyer that’s interested in that car, we just sell the car at the date that we have a buyer for the car . . it’s never been turned down. We’ve sold hundreds of them.”

Under the above facts, Truck Insurance is not in a position to argue that Chrysler Leasing Corporation as the owner of the vehicle had not by implication and course of dealing given its consent, or at least acquiesced in the practice which had *394been followed to where it could reasonably be believed that it had given its consent, to Miller-Campbell’s placing of such vehicles in the possession and use of customers who believed they had purchased the vehicle, pending completion of the paper work. The cases on what constitutes permissive use of the insured automobile make clear that permission from the owner or the named insured can arise by implication or course of conduct, as well as by express permission. See United States Fidelity & Guaranty Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809 (Mo.banc 1975). Mrs. Thurston, therefore, was using the car with the implied permission of Chrysler Leasing Corporation as well as with the direct permission of Miller-Campbell.

The Continental policy and the Truck Insurance policy differ as to coverage provided permissive users. The Continental policy, so far as third party users are concerned, as earlier stated, applies to rented automobiles. The Truck Insurance policy covers permissive users of hired automobiles (and under the definition of “hired automobile” found in the Truck Insurance policy, the station wagon was such a “hired automobile”, even though it was not a rented automobile under the Continental policy) where the use is with the permission of the owner. Accordingly, the motion for rehearing is overruled.