Cameron Mutual Insurance Co. v. Bower

558 S.W.2d 226, 1977 Mo. App. LEXIS 2279
CourtMissouri Court of Appeals
DecidedAugust 29, 1977
DocketNo. KCD 28345
StatusPublished
Cited by3 cases

This text of 558 S.W.2d 226 (Cameron Mutual Insurance Co. v. Bower) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cameron Mutual Insurance Co. v. Bower, 558 S.W.2d 226, 1977 Mo. App. LEXIS 2279 (Mo. Ct. App. 1977).

Opinion

DIXON, Judge.

Plaintiff insurance company sought a declaration that second permittee was not insured under omnibus clause of policy. Trial court found coverage, and plaintiff appeals, raising issues that trial court’s findings are not supported by the evidence and that the court erroneously applied the law concerning implied permissive use. Judgment affirmed. No appeal was perfected from the trial court’s finding that the defendant Auto Owners (Mutual) Insurance Company had excess coverage under the nonowned automobile provisions of its policy.

A statement of the posture of the parties will aid in understanding of the facts, some stipulated by the parties and some from testimony of the parties and witnesses.

Scott Stella was the operator of a car, in which Ronda Bower and Don Kohl were passengers, which was driven off the end of the runway at the Columbia Municipal Airport. Stella was killed and the passengers injured. Ronda Bower, by her father and next friend, brought suit against the estate of Stella for her injuries.

[227]*227The parties stipulated, “That on October 11, 1971, the defendants Glen Weyand and Anna Weyand were the owners and had title in them to a 1969 Ford Torino automobile. Although this car was jointly owned by these two defendants, the car was used almost exclusively by the defendant Glen Weyand. The defendant Glen Weyand was the minor son of the defendant, Anna Fern Weyand. On October 11, 1971, defendants Anna Fern Weyand and Glen Weyand had a policy of insurance with the plaintiff Cameron Mutual Insurance Company in which both Anna Fern Weyand and Glen Weyand were named insured.

. On the evening of October 11, 1971, the defendant Glen Weyand, Robert Akin and James Hendricks drove to the King’s Food Host, which is located on Business Loop 70 in the City of Columbia, Missouri, across from Hickman High School in the 1969 Ford Torino owned by the defendants Glen Weyand and Anna Fern Weyand. Glen Weyand was driving the 1969 Ford Torino. Shortly after they arrived at King’s Food Host, three girls that the boys knew . . Ronda Bower, Mary Mountjoy and Dana Estill, drove into the same driveway and parked next to them. . , Glen Weyand had been dating Dana Estill some, and Robert Akin had been dating Mary Mountjoy some. These three girls were in a 1969 Dodge which was being driven by Ronda Bower but which belonged to her father. The meeting at King’s Food Host between the three boys and three girls was not prearranged but both parties had felt they would run into each other at the drive-in. The three boys and three girls visited for a short time and for some reason or other, Glen Weyand and Ronda Bower decided to trade cars. In any event, there is no question but that each gave the other permission to drive their respective vehicles. The three girls drove directly from King’s Food Host via Business Loop 70 to the old airport in Glen Weyand’s car with Ronda Bower driving.

Glen Weyand arrived at the airport about an hour after the exchange of cars, and when he got to the airport he learned that Glen Weyand’s car had been driven off of the end of the runway. When the three girls got to the old airport in Glen Weyand’s car, Scott Stella was working on a float in another hanger [sic] at the airport. Don Kohl, who was a good friend of Scott Stella, got into the Weyand automobile with Scott Stella and Ronda Bower. Kohl was sitting on the right-hand side and Ronda Bower was sitting in the middle and Scott Stella was driving. [There is no dispute that Stella was driving with permission of Ronda Bower].

. . . [W]hile Scott Stella was operating the 1969 Ford automobile occupied by Ronda Bower and Don Kohl the vehicle went off of the north end of the north-south runway at the old airport,” causing the injuries upon which the underlying suit was brought.

The plaintiff's policy provision defining the insured which is critical to the issues reads in pertinent' part:

“. . . and also includes 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 the named insured or such spouse or with the permission of either.” (Emphasis added).

The evidence as to the circumstances surrounding the exchange of cars was conflicting. Bob Akin testified that he heard Glen give Ronda permission to drive to the airport. He did not hear the specific conversation between them. Dana Estill testified that Glen asked her if she had her driver’s license, and when she replied she did not, he and Ronda exchanged keys to their cars. She did not hear their conversation about the trade and did not hear Glen give instructions other than that they were to meet at the airport. Mary Mountjoy also did not hear the exact conversation about the exchange of cars.

Glen Weyand’s testimony was introduced by way of deposition. He testified that Ronda asked if she could drive his car to the airport, and he agreed as long as Dana accompanied her. He and his friends were to take her car to the airport in about one [228]*228hour after going to Hendricks’ dormitory. He testified that he told her she must drive directly to the airport. As to the others driving the car, he testified as follows:

“Q. Was there anything said about anyone else driving your car except Ronda Bower that evening?
A. No.
Q. Did you give permission to anyone else to drive it but Ronda Bower?
A. No.”

He later stated:

“Q. When you let Ronda Bower have your car that evening — you’ve said you permitted her to drive your car?
A. Right.
Q. —did you give her any instructions as to whether or not she should permit anyone else to drive that evening?
A. Yes, I told her not to let anyone else drive the car, including Dana Estill or anyone.”

The plaintiff insurance company first challenges the trial court’s finding that the conceded permissive use of the Weyand car was not limited. Upon this record, this issue is a factual one on conflicting evidence. This court reviews such an issue under Rule 73.01 as explicated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). So considered, the record contains ample evidence to support the trial court’s finding that no specific limitation on use by way of others driving was imposed by Weyand. This finding would, of course, depend on the trial court’s findings of credibility to which this court defers.

Plaintiff’s second point is that the trial court erred in not finding that Scott Stella was “operating” the vehicle without the “implied consent” of Weyand. Defendants counter by arguing that the issue is not the “actual operation” of car but its “use” under the specific policy language present in this case. The distinction between the “actual use” language and the wording of “actual operation” has been recognized in the case law. In Allstate Insurance Co. v. Hartford Accident and Indemnity Co., 486 S.W.2d 38, 42 (Mo.App.1972), the court set forth the distinction in the following language:

“‘For the “use”

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Related

Weathers v. Royal Indemnity Co.
577 S.W.2d 623 (Supreme Court of Missouri, 1979)
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570 S.W.2d 691 (Missouri Court of Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
558 S.W.2d 226, 1977 Mo. App. LEXIS 2279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cameron-mutual-insurance-co-v-bower-moctapp-1977.