Opinion
No. 3342.
Decided November 4, 1942.
The coverage given by an automobile liability insurance policy to use of the car "with the permission of the named assured" does not extend to the use of it by one who has been given such permission by the assured's son, where there is no evidence that such user obtained possession or control of the vehicle with the express or implied consent of the named assured.
PETITION, for a declaratory judgment, to determine whether coverage of a certain policy of automobile liability insurance, issued by the plaintiff to the defendant Vasilios Sakellarios, included Jules J. Rousseau, deceased, who was operating the insured motor vehicle at the time of an accident in which the other defendants received personal injuries. "The court found as a fact that Jules Rousseau had obtained possession of the motor vehicle with the consent of the son of the assured, Chris Sakellarios, but rules that there was no evidence from which it could be found that Jules Rousseau obtained possession or control of the motor vehicle with the express or implied consent of the named insured, Vasilios Sakellarios. Upon this ground alone the court ruled that the policy did not cover the accident." To this ruling the defendants excepted. There was no dispute over the fact that Chris Sakellarios had obtained possession of the car with the consent of his father, the named assured, as he had been in the habit of doing. By the terms of the policy, coverage is extended, not only to the named assured, but also to "any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `business and pleasure', or `commercial', each as defined herein, and provided further that the actual use is with the permission of the named assured." The policy also bore the New Hampshire Motor Vehicle indorsement, which provided as follows: "No. 2. The coverage provided herein is extended to any person who has obtained the possession or control of the motor vehicle of the named assured with his express or implied consent, even though the use in the course of which liability to pay damages arises has been expressly or impliedly forbidden by the named insured, or has not otherwise been authorized." Other facts appear in the opinion.
Transferred by Lorimer, J.
Devine Tobin (Mr. Tobin orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wadleigh orally), for the defendant Grant W. Hodsdon.
Cheney, Nighswander Lord (Mr. Nighswander orally), for the defendants, Florence Hodsdon, Beatrice Judkins and Dorothy Martin.
Chretien Craig, for Emanuel R. Rousseau, Administrator of the estate of Jules J. Rousseau.
"It is the general rule that a bailee has no right to delegate his power of user unless there is some understanding or agreement to that effect." Aetna Life Insurance Company v. Chandler, 89 N.H. 95, 97; Jesukevich v. Laporte, 89 N.H. 242; 6 C.J. 1115. It was, therefore, incumbent upon the defendant to produce evidence of "some understanding or agreement" between Chris Sakellarios and his father, authorizing Chris to permit Rousseau to use the car as he did. There is no such evidence in the case, and the ruling of the trial court was, therefore, correct. The mere relationship of father and son subsisting between the assured and Chris Sakellarios furnished no basis for an inference that such an understanding or agreement existed between them. Cronan v. Indemnity Co., 126 N. J. L. 56; Hinton v. Carmody, 186 Wn. 242; Shoup v. Clemans, 31 N.E. Rep. (2d) 103.
The argument that the clause in question was designed "for the protection of those lawfully travelling upon the public highway" and that "as long as the chain of express permissions has not been broken by a conversion or by an illegal taking, the policy should cover," might well be addressed to the legislature in advocacy of change in the Financial Responsibility Act. It suggests no ground for holding the insurer responsible for a wholly unpermitted use of the insured car under a policy which covers only "use with the permission of the named assured."
Judgment for the plaintiff.
All concurred.