834 S.W.2d 848 | Mo. Ct. App. | 1992
Plaintiff sought a declaratory judgment determining the rights of the parties under a policy of automobile liability insurance it had issued. Plaintiff contended that there was no coverage for injuries sustained by defendants Repp in a collision because defendant Shannon L. Bollinger was operating the insured vehicle without permission of its owners, the named insured under plaintiff’s policy. The definition of insured under the policy includes one who is using the vehicle “with the permission of any named insured.” Plaintiff appeals from a judgment finding there was coverage.
Plaintiff states that the trial court erred in finding that it was obligated to provide coverage to Bollinger by the court “concluding that the actual use of the automobile was with the permission of a named insured because the evidence adduced at
Review of this nonjury trial is under Rule 73.01(c). As that rule is interpreted, this court is to affirm the trial court’s determination, unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). This court sets aside a judgment on the ground that it is against the weight of the evidence only when it has a firm belief that the judgment is wrong. Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990).
Due regard is given by this court to the trial court’s determination on the credibility of witnesses. Rule 73.01(c)(2). The trial court is in a better position than this court to determine the credibility of the witnesses, their sincerity, character and other trial intangibles which may not be shown by the record. In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979).
The trial court may disbelieve testimony even when uncontradicted. Robinson v. Estate of Robinson, 768 S.W.2d 676, 677 (Mo.App.1989). All facts upon which no findings are made are presumed found in accordance with the result reached. Rule 73.01(a)(2).
This district said in Shelter Mutual Ins. Co. v. Baker, 753 S.W.2d 646, 649 (Mo.App.1988):
Permissive use of a vehicle under an omnibus clause of an automobile insurance policy may be either express or implied, [citing cases] Among the situations which may show implied permission is a common practice or course of conduct whereby the owner acquiesces in the practice of another operating his automobile, [citing case] Such implied permission is provable by circumstantial evidence.
The existence of implied permission to use a vehicle is a factual matter depending upon the facts of each case. Id. Comprehensive permission is more readily assumed if the use of the vehicle is for social rather than business purposes and where there is no relationship of employee-employer. Winterton v. Van Zandt, 351 S.W.2d 696, 701 (Mo.1961); Kemp v. MFA Mutual Insurance Co., 468 S.W.2d 700, 704 (Mo.App.1971).
The trial court made certain findings of fact which are not disputed. The dispute is whether from those facts the trial court could properly determine that Bollinger was operating the pickup with permission of the Cooks. The findings of fact, omitting numbers of the paragraphs state:
That on the date of the occurrence giving rise to this action, October 3,1990, Plaintiff Cameron Mutual Insurance Company had in force and effect a certain policy of automobile liability insurance, being Policy Number 24A0277247, which covered a 1987 Ford F-250 Pick up truck;
That on October 3, 1990, that truck was owned by Ronald L. and Imogene Cook, who were also the named insureds under the CMIC policy;
That the policy of insurance contained the following provision:
III. Definition of Insured, (a) With respect to the insurance for bodily injury liability and for property damage liability, the unqualified word “insured” includes the names, insured, any resident of the same household, any person while using the automobile, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by an insured or with the permission of any named insured.
That during the last week of September and Monday, Tuesday and Wednesday, October 1-3, 1990, Defendant Shannon Bollinger was hired by the Cooks to*851 perform farm labor for them, which included the operation of a tractor for brush hogging and discing at various locations around Sedgwickville, Missouri for which we was to be paid at the rate of $4.00 per hour.
Commencing Sunday, September 30, 1990, Shannon was living temporarily in the Cook household.
On the date of this occurrence, Shannon Bollinger was only 15 years old.
On Monday, October 1,1990, and Tuesday, October 2,1990, Shannon was put to work by Mr. Cook performing farm labor, including driving the Cook’s brown Chevrolet pick up truck.
On Wednesday, October 3, 1990, after helping Mr. Cook load cattle, without other restrictions of instructions, Mr. Cook instructed Shannon to take the Ford pick up truck insured by CMIC to the yellow bam, a building owned by the Cooks, and brush hog.
On the afternoon of Wednesday, October 3, 1990, there were one or two meetings between Mrs. Cook and Shannon Bollinger during which it became apparent to Mrs. Cook that Shannon had been operating the Ford Pickup truck. At no time during those meetings did Mrs. Cook restrict Shannon’s operation of that truck.
After working for 2 to 3 hours, Shannon drove back to the sale barn and then to the Repps’ home where he picked up the Repp boys. The four boys went to the sale bam and washed the truck.
Shannon drove the Repps home and returned to the sale bam at which time he did some general clean up of the buildings.
The boys had made arrangements for Shannon to pick up the Repp children to take them to church that night. The church is between the sale bam and the yellow bam also on Route K.
At the intersection of Route K and Route EE which leads to the Repp home, Shannon and Mrs. Cook met and discussed Shannon’s further use of the track. It is unclear whether Shannon was directed to drive the track back to the Sale Bam and wait there indefinitely or whether he was also advised that he could or should feed the cattle at the Yellow Bam. In any event, it is certain that he was given permission to continue to drive the track.
During this meeting, Mrs. Cook did not issue any other instructions or restrictions on Shannon’s driving of the track.
During this meeting, Mrs. Cook did not tell Shannon not to drive the truck nor did she take any steps to prevent Shannon from driving the track.
After picking up the Repp children, Shannon drove to his own home, which is past the yellow bam, to check his own hogs and then returned to the yellow bam where he fed the Cooks’ cattle.
Shannon was in the employ of the Cooks while feeding their cattle.
While returning to the town of Sedg-wickville, Missouri, Shannon permitted the track to leave the road way and overturn.
Shannon Bollinger was not acting as an ordinary employee. He was temporarily residing with the Cooks and was a friend of their son. As the trial court found, the Cooks placed no restrictions on his use of the pickup.
It is not necessary to determine if Bol-linger’s use of the track in driving the Repp children was a “minor deviation”. See Auto-Owners Insurance Co. v. McGaugh, 617 S.W.2d 436, 442 (Mo.App.1981); Employers Ins. of Wausau v. Pelczynski, 153 Wis.2d 303, 451 N.W.2d 300 (Ct.App.1989).
As there were no restrictions placed upon Bollinger he was not deviating from the express permission given. Permission to use an automobile can be derived from negative, as well as positive, factors. Universal Underwriters Ins. v.
It was obvious that by not putting restrictions upon Bollinger the Cooks were aware that he might use the vehicle for purposes other than connected with their farm or the sale barn. Compare Yorkshire Indemnity Co. of New York v. Collier, 172 F.2d 116 (6th Cir.1949), cited and discussed in Kemp, 468 S.W.2d at 704-705. The circumstances were such that the trial court could properly find permission at the time of the incident.
The judgment is affirmed.
. In determining permission under the omnibus clause of an automobile insurance policy some jurisdictions úse the "initial permission” rule, see Commercial Union Ins. Co. v. Johnson, 294 Ark. 444, 745 S.W.2d 589 (1988), others the "new journey" rule, see Allstate Ins. Co. v. Brackin, 234 N.J.Super. 102, 560 A.2d 109 (1989).