Brower v. Employers' Liability Assurance Co.

The judgment of the court below is right and must be affirmed. I am constrained to disagree, however, with the reasoning in the majority opinion.

The omnibus clause of the policy in suit extends protection to certain parties other than the named assured who may use the car, "provided such use or operation is with the permission of the named assured." While it is true that permission to remove the rattles conferred the right to drive the car within reasonable limits to accomplish this purpose, it is equally clear that it did not extend to the operation of the car upon a round trip of over 120 miles in the darkness of the night. The evidence shows unquestionably that the trip was for the driver's own purposes.

By no permissible construction of the terms of the policy can it be said that at the time of the accident the car was being used with the permission of the assured. The "use or operation . . . with the permission of the named assured" refers to the time of the casualty and not to the time of granting consent: Johnson v. Am. Automobile Ins. Co., 131 Me. 288; Johnston v. New Amsterdam Cas. Co., 200 N.C. 763. Where the owner allows another the use of his car for a specific purpose, restriction to such purpose is clearly implied. Express permission for a given purpose does not imply permission for all purposes. The weight of authority has consistently denied recovery in cases similar to the present: Powers v. Wells, 115 Pa. Super. 549; Truex v. Ins. Co., 116 Pa. Super. 551; Frederiksen v. Employers' Liability Assur. Corp., 26 F.2d 76; Bowen v. Cote, 69 F.2d 136; Globe Ind. Co. v. Nodlere,69 F.2d 955; Johnson v. Am. Automobile Ins. Co., supra; Kazdan v. Stein, 26 Oh. App. 455 (affirmed118 Oh. St. 217); Denny v. Royal Ind. Co., 26 Oh. App. 566; see Trotter v. Union Ind. Co., 35 F.2d 104. This is in my opinion the only sound rule.

The basis for the majority's last conclusion is unsound. To say that one regularly employed as a chauffeur who during his spare time undertakes to repair the car of a third person is, without more, an "automobile repair shop" or an agent or employee thereof, within the meaning of the policy, is to strain the construction of plain language. In view of the broad interpretation of "permission" suggested by the majority opinion, the effect of which would be to enlarge the insurer's liability, such an all-inclusive interpretation of the exceptions in favor of the insurer is remarkable. It is to be noted that this ground, upon which the majority rests its decision, was not presented or suggested in the briefs nor argued at the bar. I think the case should be decided, as it was in the court below, solely on the ground of use and operation without the permission of the assured, which was a clear violation of the terms of the policy. In my opinion that is the only ground upon which the judgment of the court below can properly be affirmed.

Mr. Justice SCHAFFER joined in the concurring opinion.