Schevling v. Johnson

122 F. Supp. 85 | D. Conn. | 1953

HINCKS, District Judge.

The case against this third-party defendant (Fidelity & Casualty Company of New York) does not depend upon the substitution of one automobile for the automobile described in the policy. For the Packard automobile involved in the accident was the “described automobile” in the policy issued by this defendant. The basic question here was whether Toohey, who was driving the Packard when the accident occurred, could properly have been found to have been then using the Packard with the implied permission of Mrs. Johnson, who was the named insured and Charles Johnson’s mother and legal guardian.

A review of all the evidence satisfies me that there was no evidence to support the finding of permission by Mrs. Johnson. There was no evidence that Mrs. Johnson expressly authorized Charles to lend her Packard to Toohey or any one else. Nor is there evidence, I think, from which such authorization could reasonably be implied. Certainly she did not put Charles in possession as an owner: she merely lent him her automobile so that he could get himself and his house guests back to New Haven from their week-end visit in Montclair. The arrangement that he should bring her automobile back to her the following week-end was undisputed. From the bare fact of a bailment for this limited purpose there is no reasonable ground for inferring a grant of authority that he might dispose of it as his own of use it as freely as he had theretofore used his own Chevrolet: this is so- even if the jury did not credit the testimony both of Mrs. Johnson and Charles that she had previously on many occasions forbidden him to lend her car.

Nor was there any evidence of a course of conduct on Charles’ part whereby he-had previously lent her Packard to others, for purposes of their own. At most, there was evidence that once, a year before, she had lent the Packard to Charles, for a trip to Hanover, that on that occasion she had permitted a friend of Charles to drive it from Montclair to-New Haven, and that on the round trip-from New Haven to Hanover Charles, had shared the driving with companions. But this isolated and limited bailment is insufficient as evidence of implied permission a year later to Charles to make-the automobile available to use by others for their own purposes. And if it be of' any materiality for its impact on this defendant, it may be noted that there was no evidence that Mrs. Johnson had knowledge of a prior course of conduct on Charles’ part to lend his Chevrolet to others. As to this, at most the evidence showed one occasion, some four months before, when the Chevrolet was driven to the George Washington Bridge to meet Mrs. Johnson in her Packard. But the trip was made not for the convenience of others but for Charles who was then a passenger with a broken wrist. Knowledge by Mrs. Johnson that Charles on that occasion for his own convenience while a passenger permitted another to drive his Chevrolet is insufficient to serve as foundation for an inference that Mrs. Johnson authorized Charles to put her Packard in sole control of another for the convenience not of Charles but of his sub-bailee.

On trial, this defendant had made a motion for a directed verdict on which I reserved decision under Rule 50(b), 28 U.S.C.A. Now, after due deliberation,

It is ordered that the motion for a directed verdict in favor of this defendant be granted. As a result, the motion later filed to set aside and for new trial may be deemed denied pro forma, as moot.