(dissenting).
I am unable to agree with the result reached in this case. In dissenting, I shall make a few comments which I hope are pertinent.
In the beginning, I am not satisfied with the issue as framed by the trial court. The issue as stated in plaintiff’s brief is, “The question to be considered in this case is whether or not Appellant’s policy extended coverage to Sydney Franklin, a second permittee, while using the vehicle in serving the purpose for which permission had been extended to David Franklin, the original per-mittee.” Consistent with the pleadings, defendant in its reply brief states, “In this case, the question of whether or not a permittee as such has the authority to delegate the use and operation of the vehicle to still another is the question at issue.”
In describing the circumstances under which Sydney was using the car at the time of the accident, the opinion states, “ * * * while Franklin at the same time drove his own car there' to leave it for repairs,” thereby indicating that both cars were driven to the garage simultaneously. As I understand, Franklin drove his car to the garage for repairs and, while there, telephoned his wife to pick him up. It was in response to this call that she drove the Pontiac involved in the accident.
*1003For my purpose there is no point in any extended discussion of previous cases. They are all distinguishable on the facts and, as I understand, it is conceded that none of them are decisive of the question for decision. The opinion states, “The instant holding is but one step removed from that in Standard Accident [249 F.2d 847] * * That may be correct, but it is a big step which I am unwilling to take because it extends coverage to persons indefinite and uncertain in number, who are or may be strangers to the parties designated in the insurance contract.
The terms of the policy involved in the case are stated in the opinion. They describe the persons covered in language so plain and unambiguous that all who read can understand, and there is no room for interpretation or construction. What the majority is doing in effect is amending the coverage provision by adding, “(3) Any other person using such automobile with the consent of the person granted such permission, provided such use has not been expressly prohibited by the Named Assured or an adult member of his household.” Such a result, in my view, cannot be justified, whether we follow a liberal or non-liberal rule of construction.
In Aetna Casualty & Surety Co. v. De Maison, 213 F.2d 826, 834 (CA-3), the Court held, “ * * * that permission to use an automobile does not in itself, by implication, include an authority to delegate such permission to a third person.” The Court cites in support of this statement Card v. Commercial Casualty Insurance Co., 20 Tenn.App. 132, 95 S.W.2d 1281. In that case, the Tennessee court made a statement (95 S.W.2d 1284), irrefutable I think, as follows: “The ‘additional assured’ clause in effect gives the named assured the discretionary power to select ‘additional assureds.’ This discretionary power cannot be delegated to another. * * * The element of risk underlies all forms of insurance. The insurer has a right to assume that the risk he undertakes shall not be enlarged. The extent of the risk is the basis of all tabulated premium charges. * * * The insurer looks first to the standing and reputation of the named assured, and trusts his discretion in selecting other persons to operate the car. * * * the named assured has no power to delegate his discretion ; he must personally approve and give ‘permission’ in order to bring the other person within the coverage of the policy.”
The instant opinion states, “If Franklin had driven the loaned car to the garage, while his wife drove his own car there to leave it for repairs, there could be little question but that the instant policy covered such use.” I agree, but it could be added that if he had done so there probably would have been no accident. Instead of driving the car himself, he delegated to another person the authority with which he had been entrusted.
The opinion reaches the ultimate conclusion that Sydney had the implied permission of Odie to use the car because there was “no deviation from the use intended and no prohibition against another using the car for the intended purpose * * In my view, this conclusion is without logic or good reason and I doubt if it is supportable by any authority. If the conclusion is accepted, any person, however irresponsible, who drove the car to the garage at Franklin’s request did so with the implied permission of Odie and thereby became a person assured. In that instance it could be claimed, as it is here on behalf of Sydney, that there was “no deviation from the use intended and no prohibition against another using the car for the intended purpose.”
The two Indiana cases, American Employers’ Ins. Co. v. Cornell, 225 Ind. 559, 76 N.E.2d 562 (1948), and Mercer Casualty Co. of Celina, Ohio v. Kreamer, 105 Ind.App. 358, 11 N.E.2d 84 (1937), relied upon in the opinion, in my judgment furnish no support for the application in this case of the implied permission theory. A comparison of the factual situation in those cases with that here *1004inferentially at least supports the opposite conclusion.
In Cornell, title to the car was in the wife who could not drive and never had possession of the car. It was driven by her husband, who kept the keys and had the entire responsibility for its use. Both husband and wife were friends of one Beal who lived in the same rooming house. Beal had driven the car both in company with the husband and wife and when neither was with him. The husband, wife and Beal were sitting together in a tavern, when Beal asked the husband if he could borrow the car. The husband told Beal that he could and handed him the keys. This conversation and transaction took place while all the parties were seated at a table in the tavern, within the presence and hearing of the wife. While Beal had possession of the ear, he was involved in the accident giving rise to the litigation. On that factual basis the Court held that Beal had implied permission from the wife (owner of the car) to drive it at the time in question. On the facts of the case it is hardly discernible how the Court could have reached any other conclusion.
In contrast, the facts in the instant case show that not a word was spoken between Odie and Franklin from which the former could even have inferred that the latter would permit some other person to drive the car. More important, Sydney was not present when Odie granted Franklin permission to use it. Thus, she heard nothing and knew nothing about the arrangements. In this respect, she and Odie were strangers to each other.
In Kreamer, Mary Maeey and Richard Graber were friends. Macey who held title to the car permitted it to be driven by Graber. An agreement existed between them that either could use the car and permit any one to drive it whom he or she thought competent. Graber permitted one Weikel to drive the car and, while so doing, the latter was involved in an accident which gave rise to the litigation. The Court found that Macey, in whom the car was titled, had given permission to Graber to drive the car and that she had also conferred blanket authority upon him to let any person drive the car whom he thought was a competent driver. Thus, Kreamer, like Cornell, furnishes no support for the implied permission theory relied on in the instant case.
I would reverse the judgment, with directions that the defendant be exonerated from liability on its insurance contract in issue.