Royal Indemnity Co. v. H. E. Abbott & Sons, Inc.

392 S.W.2d 359
CourtCourt of Appeals of Texas
DecidedJune 23, 1965
DocketNo. 11321
StatusPublished
Cited by2 cases

This text of 392 S.W.2d 359 (Royal Indemnity Co. v. H. E. Abbott & Sons, Inc.) 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
Royal Indemnity Co. v. H. E. Abbott & Sons, Inc., 392 S.W.2d 359 (Tex. Ct. App. 1965).

Opinion

ARCHER, Chief Justice.

This was an action on an automobile liability insurance policy brought by appellee, a building owner, directly against appellant insurance company to recover for damages to appellee’s building inflicted by one alleged to have been operating the insured pickup truck with the implied permission of the named insured so as to be an omnibus insured under the policy. Trial to a jury resulted in a jury finding of implied permission and a judgment for appellee from which this appeal has been taken.

[360]*360The points relied upon for reversal of this ease are:

“FIRST POINT: The court erred in submitting special issue No. 1 to the jury over appellant’s timely objection that there was no evidence to support said issue, which read as follows:
‘Do you find from a preponderance of the evidence that when George Kenneth Landers was operating the vehicle belonging to Jack Herring on or about July 27, 1963, he, the said George Kenneth Landers, did so with the implied permission of the said Jack Herring?
Answer: Yes or No.
Answer: -’
SECOND POINT: The court erred in rendering judgment for appellee on the verdict for the reason that the evidence is insufficient to support the jury’s finding that the vehicle was used with the implied permission of its owner at the time of the collision.
THIRD POINT: The court erred in admitting the testimony of the witness, George Kenneth Landers, to the effect that he did not think he was stealing the truck when he drove it off, over appellant’s timely objection that said testimony was a conclusion of the witness, was conjectural and invaded the province of the jury.
FOURTH POINT: The court erred in admitting the testimony of the witness, George Kenneth Landers, as to whether or not he thought he had permission to drive the vehicle in question under a hypothetical set of facts stated by counsel, over appellant’s timely objection that the testimony was a conclusion of the witness, invaded the province of the jury and was based on a hypothetical state of' facts, none of which were in evidence and amounted to a statement of the mental processes of the witness as to what he thought about a particular situation rather than something he said or did.”

Jack Herring employed Landers as a ranch hand on Herring’s ranch about 14 miles from Ballinger, Texas, at $135.00 a month plus room and board, and for a time Landers did his own cooking and lived in a small house near the ranch house and later began taking his meals with the family.

Herring owned three motor vehicles, a passenger car, a 1961 pickup and a 1955 pickup, the latter was not licensed and was for use on the ranch premises, and Herring ordinarily used the 1961 truck. Landers had permission to drive the 1955 truck, and if it was out of repair could use the 1961 truck on the ranch which was parked behind the ranch house when not in use and the 1955 model was usually left around the barn, and the keys to both vehicles were customarily left in them. Herring had ascertained that Landers had a driver’s license before his employment.

Prior to the date of the accident Landers had not, to Herring’s knowledge, taken any of the vehicles off the premises except on three or four occasions. When told to do so Landers had picked up the Herring children at the school bus stop about four or six miles from the house, partly over a private road and a part over a public highway.

On Saturday afternoon, July 27, 1963, the date of the accident Herring and Land-ers had gone to Bronte to the races and Herring did the driving and returned at about 4:00 p. m. Later in the evening the Herring family went to Big Spring to spend the night with friends.

About 7:00 p. m. Landers took the 1961 truck and went to San Angelo where he collided with appellee’s building.

Herring learned of the accident and threatened to “beat the stuffing” out of Landers and might file charges against him, but finally told Landers “If he would do right about it and work it out, well he could stay.” Landers did stay for about nine months and did pay for the repairs on the truck in the sum of $400.00.

[361]*361The subject of Landers using the vehicles off of the ranch did not come up and Herring had never expressly instructed Land-ers to use the vehicles off the ranch, and had never, before the collision, expressly forbidden Landers to use the 1961 truck.

This is a case of no evidence to support a submission of the question of implied permission to the jury.

It is further contended by appellant that the evidence is insufficient to support the finding of the jury, and the judgment rendered on the verdict is erroneous.

We must consider the evidence and the inferences to be properly drawn therefrom in the light most favorable to the party for whom the verdict and judgment was favorably entered, and accept the verity of the testimony tending to support the verdict. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208; O’Hara v. Ferguson Mack Truck Co., Inc., Tex.Civ.App., 373 S.W.2d 507, er. ref., n. r. e.; State & County Mutual Fire Insurance Company v. Kinner, Tex.Civ.App., 314 S.W.2d 871, aff’d., 319 S.W.2d 297.

Express permission is not necessary in order for a driver of a non-owned vehicle to be covered; such permission may be implied. Employers Mutual Casualty Company of Des Moines v. Mosqueda, 317 F.2d 609 (5th Cir. 1963); 7 Appleman Ins. Law and Proc., § 4365 at page 303; 45 C.J.S. Insurance § 829, p. 884.

“Implied Permission is actual permission circumstantially proved.” Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa, 193 F.2d 255 (8th Cir. 1952).

Facts creating an implied permission invariably must be proved by circumstantial evidence, inasmuch as little or no direct evidence can ever be produced.

We then examine all of the facts as developed in the trial court in the light of the above definitions to determine whether implied permission was shown.

In view of the conduct of the parties there was more than a mere employer-employee relationship between Herring and Landers. Landers was allowed privileges in the ranch home, when Mrs. Herring was away during the day Landers could fix his dinner, which he did lots of times. Herring testified:

“Q Mr. Herring, on Saturday, July 27th, 1963 when you and Mr. Landers went to Bronte, did you have any particular reason for going over there?
A Went to the horse races.
Q Had you done that before?
Yes, sir. >
On Saturday at the ranch did you ordinarily work or what was the situation? ©

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

Related

Vidaurri v. Maryland Casualty Company
444 S.W.2d 767 (Court of Appeals of Texas, 1969)
Royal Indemnity Company v. HE Abbott & Sons, Inc.
399 S.W.2d 343 (Texas Supreme Court, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
392 S.W.2d 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royal-indemnity-co-v-h-e-abbott-sons-inc-texapp-1965.