Hartford Accident and Indemnity Corp. v. Lowery

490 S.W.2d 935, 1973 Tex. App. LEXIS 2289
CourtCourt of Appeals of Texas
DecidedFebruary 8, 1973
Docket7433
StatusPublished
Cited by23 cases

This text of 490 S.W.2d 935 (Hartford Accident and Indemnity Corp. v. Lowery) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hartford Accident and Indemnity Corp. v. Lowery, 490 S.W.2d 935, 1973 Tex. App. LEXIS 2289 (Tex. Ct. App. 1973).

Opinions

STEPHENSON, Justice.

Giles Lowery brought this action against his liability insurance carrier, Hartford Accident and Indemnity Corporation, to recover money paid by him in defense and settlement of personal injury claims. Trial was before the court and judgment was rendered for plaintiff. The parties will be referred to here as they were in the trial court.

The parties agree on most of the facts in this case. Defendant issued a policy of insurance to plaintiff which insured a 1968 Ford half-ton pickup. That policy of insurance was in force and effect on the date of the accident made the basis of the claims against plaintiff. Defendant was given notice of the accident and denied coverage under the policy. Suit was filed against plaintiff and defendant refused to defend him and again denied coverage under the policy. That case was settled and this suit was brought to recover the amount of the settlement paid by plaintiff plus his attorney’s fees.

[937]*937It is also undisputed that the pickup truck in question was being driven by Reese Miller at the time of the collision. Reese Miller was plaintiffs employee. Herbert Lowery, plaintiffs brother, asked Reese Miller to catch a cow for him that had gotten out of its pasture. Miller attached a gooseneck trailer to the pickup truck and was on the way to catch the cow when the collision occurred. Defendant has denied coverage for two reasons. First, that Reese Miller did not have permission to operate the pickup truck on the occasion of the collision. Secondly, the gooseneck trailer attached to the pickup truck was not designed for use with a private passenger automoble.

The trial court made findings of fact and conclusions of law. Among others, the court found as a fact: That Reese Miller had plaintiff’s implied consent to drive the pickup truck. That Herbert Lowery had express and implied consent to drive the pickup and to authorize others to drive the pickup for Herbert Lowery’s use and benefit. That Herbert Lowery authorized Reese Miller to drive the pickup truck on the occasion of the collision.

Defendant has points of error that there is no evidence and insufficient evidence to support these findings of fact and that such findings are contrary to the great weight and preponderance of the evidence. In passing upon the no evidence points, we consider only the evidence favorable to such findings; and in passing upon the remaining points, we consider the entire record.

The policy herein sued upon provides, in substance, under “Definition of Insured” that it includes the named insured, his wife and “any person while using the automobile . . . provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”

The law is well settled in Texas that permission means consent to use the vehicle at the time and place in question and in a manner authorized by the owner, either express or implied. Allstate Insurance Company v. Smith, 471 S.W.2d 620, 624 (Tex.Civ.App., El Paso, 1971, no writ); Phoenix Insurance Co. v. Allstate Insurance Co., 412 S.W.2d 331 (Tex.Civ.App., Corpus Christi, 1967, no writ); United Services Automobile Ass’n v. Zeller, 135 S.W.2d 161 (Tex.Civ.App., San Antonio, 1939, dism. judgm. cor.); and Travelers Indemnity Co. v. Employers Casualty Co., 474 S.W.2d 501 (Tex.Civ.App., Waco, 1971, no writ). In the case before us, in order for Reese Miller to be an additional insured under’ the omnibus clause of the insurance policy sued upon, Miller had to be driving the car at the time of the collision with Giles Lowery’s express or implied consent. If Reese Miller had implied consent, either directly from Giles Lowery or through Herbert Lowery, then Reese Miller was an additional insured under the policy. An excellent discussion of a somewhat similar factual situation is found in Phoenix Insurance Co. v. Allstate Insurance Co., supra, as follows:

“While the general rule seems to be that the mere permission by the named insured to another to use the insured automobile does not alone authorize the per-mittee to delegate his right of user to a third person so as to entitle the latter to protection under the omnibus clause, it is well settled that the named insured’s permission to a second permittee need not be express, but may be implied from the broad nature of the initial permission, or from the conduct of the parties and the attendant facts and circumstances. A factual determination as to the existence of such implied authority is usually necessary.” (412 S.W.2d at 334, emphasis by the court)

That case quotes from 7 Am.Jur.2d, Automobile Insurance, § 116 as follows:

'It has frequently been stated that, as a general rule, the permission given by the named insured to another to use the [938]*938named insured’s car does not authorize the permittee to allow a third party to use the car, and that if the permittee does allow a second permittee to use the car, such use is not “with the permission of the named insured” as those words are used in the omnibus clause. However, the effect of this strict rule has been greatly diluted by reason of the fact that many of the courts recognising the rule have substantially modified it by stating that in every case where the first permittee permits another to use the insured automobile, a factual determination must be made whether the initial grant of permission was broad enough to include an implied grant to the permittee of authority to give another use of the automobile and thus render the latter an additional insured under the omnibus clause.’ ” (412 S.W.2d at 335, emphasis by the court)

Also quoted in that opinion is 7 Am.Jur. 2d, Automobile Insurance, § 117 as follows:

“ ‘The “general rule” that a permittee may not allow a third party to “use” the named insured’s car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second permittee at the time of the accident, or (2) the second permittee in using the vehicle, is serving some purpose of the original permittee. The courts generally reason that under such circumstances the second permittee is “operating” the car for the “use” of the first permittee and that such “use” is within the coverage of the omnibus clause. * * *
“ ‘As to the second of the situations mentioned above — that is, where the second permittee, in using the automobile, is serving some purpose of the original per-mittee — the rule generally followed is that the initial permission given by the named insured to the original permittee includes by implication the authority to delegate the operation of the automobile to an agent or servant where the latter operates the car in the interest of the original permittee or for their mutual purposes.’ ” (412 S.W.2d at 336)

Giles Lowery testified: Reese Leonard Miller was his employee and had been working for him for five or six years. It was ordinary routine for Miller to drive the pickup in question in doing work for him. Miller had driven the pickup “I imagine about 10,000” times. Miller ordinarily worked a five-day week.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sentry Select Insurance Co. v. Lopez
241 F. Supp. 3d 777 (W.D. Texas, 2017)
Adams v. Travelers Indemnity Co.
465 F.3d 156 (Fifth Circuit, 2006)
Minter v. Great American Insurance Co. of New York
423 F.3d 460 (Fifth Circuit, 2005)
Minter v. Great American Insurance Company
423 F.3d 460 (Fifth Circuit, 2005)
OLD AMERICAN COUNTY MUT. FIRE v. Renfrow
90 S.W.3d 810 (Court of Appeals of Texas, 2002)
Old American County Mutual Fire Insurance Co. v. Renfrow
90 S.W.3d 810 (Court of Appeals of Texas, 2002)
Sanders v. Georgia Farm Bureau Mutual Insurance
355 S.E.2d 705 (Court of Appeals of Georgia, 1987)
Coleman v. State
608 S.W.2d 923 (Court of Criminal Appeals of Texas, 1980)
North River Insurance Co. v. Gurney
603 S.W.2d 280 (Court of Appeals of Texas, 1980)
Ohio Casualty Insurance Co. v. Tyler
407 N.E.2d 77 (Appellate Court of Illinois, 1980)
United Services Automobile Ass'n v. Stevens
596 S.W.2d 955 (Court of Appeals of Texas, 1980)
Security Mutual Casualty Co. v. Johnson
575 S.W.2d 107 (Court of Appeals of Texas, 1978)
Bankers Commercial Life Insurance Co. v. Merrell
563 S.W.2d 691 (Court of Appeals of Texas, 1978)
National Life & Accident Insurance v. Martin
554 S.W.2d 53 (Court of Appeals of Texas, 1977)
Matter of P a O
530 S.W.2d 902 (Court of Appeals of Texas, 1975)
Matter of Pao
530 S.W.2d 902 (Court of Appeals of Texas, 1975)
Riker v. Aetna Casualty & Surety Company
286 So. 2d 493 (Louisiana Court of Appeal, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
490 S.W.2d 935, 1973 Tex. App. LEXIS 2289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartford-accident-and-indemnity-corp-v-lowery-texapp-1973.