Universal Underwriters Ins. Co. v. Davis

KENNEDY, Presiding Judge,

dissenting.

I respectfully dissent.

The majority opinion seems to me to be in conflict with Farm Bureau Mutual Insurance Company v. Broadie, 558 S.W.2d 751 (Mo.App.1977); Weathers v. Royal Indemnity Company, 577 S.W.2d 623 (Mo. banc 1979); and Royal Indemnity Company v. Shull, 665 S.W.2d 345 (Mo. banc 1984). Those cases establish the proposition, in a variety of factual situations, that where the named insured permits the use to which the insured automobile is being put at the time of the accident, then the fact that the driver does not have the named insured’s permission to drive, or even that he is forbidden to drive, does not defeat coverage under the omnibus clause which provides coverage when the “actual use of the auto” is “within the scope of (the named insured’s) permission.”

The “actual use” in this case was expressly permitted, i.e., the transportation of salesman Davis’s sons, who were guests at his house, to a reception honoring their former teacher. The written bailment contract under which salesman Davis had possession of the car, included as Appendix A hereto, not only permitted such use, it required that the car be driven “to church, club functions, shopping, etc.” This served a business purpose of the owner, in that it gave the automobile “high visibility” as the owner’s “showroom on wheels”, according to the language of the contract. Furthermore, Mr. H. E. Miller, president of the owner, expressly testified that this was a *195permitted use. For this personal use salesman Davis was charged $50 per month and the contract also required that he pay the first $250 of any damage to the car if it should be damaged while it was in personal use.

The majority opinion, on the other hand, seeks to say that the “use” being made of the car at the time of the accident was not a permitted use, because the use and the driver in this case are inseparably linked; that the purpose of the bailment was that the car be used as a “sales tool”, and that this involved salesman Davis’s being in it or near it to answer questions. The trouble with the theory is that the evidence in no way bears it out. The bailment contract itself says:

The automobile is our showroom on wheels and the employee should strive for high visibility of the automobile to help advertise the employer’s product. (The demonstrator should be driven to church, club functions, shopping, etc.). Public response to the automobile will be tempered by its appearance. For this reason the automobile will be maintained in proper condition for presentation to the public. Interior and exterior must be clean and well-groomed at all times.

Mr. Miller testified that the automobile had on it a price sticker, which contained price information, options, EPA rating and also contained the name of the dealer. Also the name of H. E. Miller Oldsmobile was on a nameplate on the back of the car. While the car’s use as a “sales tool” might in rare instances be enhanced by having a salesman at the wheel (there was no evidence of this at all), it certainly cannot be said that the purpose of the bailment was lost or substantially diminished by its being driven by someone other than salesman Davis. Mr. Miller’s testimony was as follows:

Q. If the vehicle is driven to a public function with all the markings, the sticker, your tag on the back, the dealer plates, clearly marking it as a dealer vehicle, and the purpose of issuing that car to the salesman is for the purpose of public exposure, the exposure of the public to that car, then it really doesn’t make any difference for that purpose that the car is driven by — is actually driven there by the salesman or not, does it; the same purpose is still served, exposure of the car to the public, regardless of who drove it?
A. I don’t see the reason for your question. The automobile carries dealer plates, it carries — supposed to carry the sticker on the window, which is supposed to be on it, carries my name plate on the back, so when you say that, you about answered all questions ... It’s for the public’s eyes.
Q. If it is in fact driven to a public event, that same purpose is served, is it not, regardless of who actually drove it there, isn’t that true? The public is — still has exposure to the vehicle?
A. Yes, the public would have exposure to the vehicle.

I do not know how we can say as a matter of law, contrary to the fact-finding of the trial court, that the use in this case was not a permitted use. Whether the use is permitted is primarily a factual matter, upon which we should defer to the trial court, not substitute our own judgment. Wells v. Hartford Accident and Indemnity Co., 459 S.W.2d 253, 258 (Mo. banc 1970).

I will add one more thing on a point suggested by Judge Blackmar’s opinion in Shull, and accorded some significance therein. It is there pointed out that the lessee of the automobile, who contrary to the bailment contract allowed someone else to drive, had not been warned by the lessor that there would be no insurance coverage for such an unpermitted driver. In the present case, that also is true. There is no evidence that salesman Davis had any notice at all that lending the car to someone else to drive would nullify insurance coverage. (Salesman Davis did testify that his son had his own insurance, and when he reported the accident to his employer he explained in mitigation of his offense that *196his son had his own insurance. Whether this indicates that he believed there was no coverage under the policy in question is unknown. And if he did have such a belief, there is no reason to think it came from the named insured.) In fact, the bailment contract itself says only that: “Use of the automobile beyond the terms of this agreement may result in assessment of additional withholding and social security taxes by the Internal Revenue Service. In that event, the employee assumes full responsibility for his additional taxes.” Salesman Davis could very well have supposed that that (and his possible discharge from employment) would be the only consequence of his allowing someone else to drive the car.

The appellants and the majority opinion rely upon United States Fidelity & Guaranty Company v. Safeco Insurance Company of America, 522 S.W.2d 809 (Mo. banc 1975). That case was decided upon a first permittee-second permittee analysis. The court did not notice the use-operation dichotomy at all; apparently the parties did not raise it. The latter analysis first came into focus in Broadie and has been further developed in Weathers and Shull. . USF & G v. Safeco is not authority for the position of the majority opinion.

Even under that case, though, and under the first permittee-second permittee analysis, I believe the trial judge’s finding of coverage ought to be sustained on the basis of implied permission running from H. E. Miller Oldsmobile to the driver John Nicholas Davis. The bailment contract prohibition against a “member of the employee’s family” driving the car does not apply to John Nicholas Davis. While the term “family” may have a narrower or a broader meaning, in this context it would be coextensive with the term “household”. Cobb v. State Security Insurance Co., 576 S.W.2d 726, 738 (Mo. banc 1979). He was an emancipated married adult living in California. See Cobb v. State Security Insurance Co., 576 S.W.2d at 738; Giokaris v. Kincaid, 331 S.W.2d 633, 640-41 (Mo.1960). The implication is that all but members of the family would be permitted to drive the car. John Nicholas Davis had bought two cars from his father and had never bought a car from anyone else. He was not an immediate sales prospect but he might become one. I can by no means join my fellow judges in saying that as a matter of law he did not have implied permission of the owner to drive the automobile under the USF & G v. Safeco standards. I would not overturn the trial judge’s decision on this point, even if the first permittee-second permittee analysis were proper in this case. There is good reason to affirm, under that analysis. But I do not rest my dissent on that ground. I put my dissent on the ground that the use to which the car was being put was a permitted use, following the Broadie, Weathers and Shull decisions. The majority opinion tends in the opposite direction from those cases in restricting rather than expanding coverage within the allowable meaning of the policy language. See Weathers, 571 S.W.2d at 625.

Judgment of the trial court should be affirmed.

APPENDIX A

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