Opinion
February 7, 1961 —
March 7, 1961.
APPEAL from a judgment of the circuit court for Rock county: ARTHUR L. LUEBKE, Circuit Judge. Affirmed.
For the appellants there were briefs by Dougherty, Campbell, Brennan Steil of Janesville, and oral argument by James E. Brennan.
For the respondent there was a brief by Roberts, Boardman, Suhr, Bjork Curry of Madison, and oral argument by Walter M. Bjork.
Willett T. (Tom) Main and his father brought action to recover damages for personal injuries sustained by Tom on February 10, 1957. Defendants were Robert Cameron, driver of the Packard automobile in which Tom Main was a passenger, and two insurance companies. State Farm Mutual Automobile Insurance Company had issued an automobile liability policy to Edward Vorel, the owner of the Packard, and St. Paul Fire Marine Insurance Company had issued a policy to the father of Robert Cameron. Under the terms of the policies, the St. Paul policy would insure liability of Robert Cameron arising out of the use of an automobile other than the automobile described in the policy, but such insurance would be excess over other valid and collectible insurance; the State Farm policy would cover Cameron's liability if Cameron was using the Packard with Vorel's permission, but not otherwise.
Before trial, the parties stipulated that plaintiffs were entitled to judgment in the total amount of $4,500, and that the only issue to be tried would be whether the judgment should be against Cameron and St. Paul, or against State Farm. The jury found that Cameron was using the Packard with Vorel's permission. Upon motions after verdict, the circuit court changed this answer, and on March 2, 1960, judgment was entered against Cameron and St. Paul. They appealed.
It is undisputed that Edward Vorel had not given express permission to Cameron to drive the Packard. The sole question was whether permission was implied by reason of the circumstances.
In early 1957, Cameron, Heald, and Tischler were students at the University of Wisconsin, and lived at a fraternity house in Madison. Scheibel was a house fellow at a university dormitory. Vorel was in business with his father in Kenosha selling Packard automobiles, and on February 9, 1957, came to Madison and visited Scheibel. Vorel had been graduated from the university in June, 1955.
Cameron had entered the university in the fall of 1954, and in January, 1955, moved into a dormitory where he became acquainted with Heald, Tischler, Scheibel, and Vorel. The five students chummed around together, generally ate together at the dining hall, and went to parties and on dates together. Vorel was well to do and generous, and would often buy the drinks when the group was together. Vorel had a car on the campus while the others did not. Apparently they rode with him when transportation was required.
It does not appear that his car was freely used by anyone else. Tischler and Heald each testified that they had driven a car of Vorel's on two occasions. The distances were short, and in each case they had Vorel's express permission. Cameron had never driven a Vorel car at Madison. He had, however, visited at Vorel home in Kenosha one weekend, and at that time with Vorel's knowledge had used a 1948 Packard, which Vorel was then driving. They had invited two girls to dinner, and Cameron used the car to call for them while Vorel was cooking the steaks.
Prior to February 9, 1957, Cameron had not seen Vorel since the fall of 1955, when both visited the Heald home at Bailey's Harbor.
On the afternoon of Saturday, February 9th, Vorel and Scheibel came over to the fraternity house to visit with the other three. Vorel was driving a 1956 customized Packard Carribean convertible worth about $10,000. He parked it at the curb, and left it locked. After a visit, the group walked a few blocks to a bar, and had a number of rounds of drinks bought by Vorel. Vorel was affected by the liquor, and was unable to walk. He gave his keys to Tischler, who got the car and drove all of them back to the fraternity house. Vorel was carried inside, and later put to bed. The car was left in the parking area at the fraternity. The keys were left in it, in compliance with a custom that cars be left so that they could be moved if necessary. This occurred around 7:30 to 8:30 in the evening. Around 10:30 Cameron remembered that Vorel had become sick on the way back to the house, and that the car needed cleaning. He got equipment and cleaned it up, and then thought he would like to drive it around the block once or twice to see how it handled. "It was a different car you know." He brought it back after a few minutes, and parked it again.
Around midnight, he decided he would like to take the car again to see how it ran on the highway, and asked Tom Main to accompany him. Main was dubious about taking the car without permission, and he went upstairs to ask. He was able to arouse Vorel somewhat, but could get no response except something to the effect that the car would be better at the curb. Main reported this to Cameron, and Cameron went up to see Vorel, but was unable to get any response. Cameron then told Main that he was certain that it was all right. They put several gallons of gas in the tank, and drove until they had an accident in the vicinity of Janesville.
Early the next morning, a Rock county deputy sheriff telephoned the fraternity house, and left word that there had been an accident and that Vorel should return the call. Vorel had some discussion with others present as to what he could or should say under the circumstances. Then he telephoned. The deputy sheriff testified:
"I asked him if the car had been stolen; he stated it had not. I asked him if they had given permission for the car to be used, or his consent. He said that he had not given consent, but everybody, the boys at the fraternity have implied permission to use his car."
Vorel was not a member of the fraternity. Heald testified that when Vorel was first told that there had been an accident, Vorel's reaction was one of complacency, and that he was not visibly upset about the fact that Cameron had taken the car.
Repeated use of an automobile by one who is not the owner with the owner's knowledge of such use permits an inference that the owner had given consent, express or implied, to the other's use of the automobile.
Christiansen v. Aetna Casualty Surety Co. (1931), 204 Wis. 323, 236 N.W. 109; Adams v. Quality Service Laundry Dry Cleaners (1948), 253 Wis. 334, 34 N.W.2d 148.
It is conceded here that there was no express consent, and no sufferance by Vorel of repeated use of the particular automobile (nor any other Vorel automobile) by Cameron.
Appellant cites four decisions to support the proposition that permission may be implied from circumstances which do not include prior repeated use of the automobile by the alleged permittee.
Pierce v. Standow (1958), 163 Cal.App.2d 286, 329 P.2d 44; Elkinton v. California State Automobile Asso., Interstate Ins. Bureau (1959), 173 Cal.App.2d 338, 343 P.2d 396; Home Indemnity Co. v. Norton (7th Cir. 1958), 260 F.2d 510; Talbot v. Allstate Ins. Co. (La.App. 1954), 76 So.2d 76.
In the first three of the cases cited, the permittee was the child of the owner, and they lived in the same household. In Talbot v. Allstate Ins. Co., supra, the owner was the brother-in-law and a house guest of the permittee. In three of the cases, the keys were left where they were accessible to the permittee, and in one case were left in the possession of the permittee, although allegedly not for the purpose of driving the car. Of course there were other circumstances in each case which, when considered together with the relationship and accessibility of the keys, were held to support a finding of implied permission. In the case before us, the record does not, in our opinion, support such finding.
Cameron and Vorel were friends and former college mates. Vorel, though generous toward his friends, had not manifested his generosity by freely permitting them to use his automobiles. When Vorel arrived at the fraternity house on February 9th, he left the car locked. He later gave his keys to Tischler so that Tischler could drive the car for a particular purpose. Under the circumstances, it is doubtful whether Vorel realized that Tischler left the keys in the automobile after that purpose was accomplished. In any event, it is quite clear that the purpose for which the keys were left in the car was very limited. The purpose for which Cameron took the car was completely unrelated. The circuit court correctly determined that the evidence would not support a finding that Cameron was using the car with Vorel's permission.
Appellant relies upon Vorel's statement to the deputy sheriff after the accident that Cameron had implied permission. Evidence of this statement was received over respondent's objection. At best, the statement was evidence of Vorel's state of mind toward Cameron's use of the car at the time that Vorel learned of the accident. In Talbot v. Allstate Ins. Co., supra, the court considered a similar statement made after the accident along with other circumstances and conduct before the car was used as supporting a finding of implied permission. In Home Indemnity Co. v. Norton, supra, the court considered as one circumstance the owner's lack of objection to his son's use of the car when he first saw his son after the accident. In the case before us, there were no circumstances or conduct occurring before Cameron took the car from which permission could be implied. The proposition stated by Vorel that Cameron, or the boys at the fraternity, had implied permission was only a conclusion.
By the Court. — Judgment affirmed.