Frederiksen v. EMPLOYERS'LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND, 26 F.2d 76 (9th Cir. 1928)

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US Court of Appeals for the Ninth Circuit - 26 F.2d 76 (9th Cir. 1928)
April 30, 1928

26 F.2d 76 (1928)

FREDERIKSEN
v.
EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND, et al.

No. 5333.

Circuit Court of Appeals, Ninth Circuit.

April 30, 1928.

Frank M. Carr and Stanley R. Sterne, both of Oakland, Cal., for plaintiff in error.

Redman & Alexander, of San Francisco, Cal., for defendants in error.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

That the trial court properly instructed the jury to return a verdict for the defendants is too plain to require discussion. By no permissible construction of the terms of the insurance policies can it be held that Bryson at the time of the accident was using the automobile with the permission of the insured, or with the permission of any member of his family.

The plaintiff in error relies upon the case of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A. L. R. 500. But the facts in that case were distinctly different from those in the case at bar. The policy in that case protected the owner of the automobile and any person driving or legally operating the same, "provided such use or operation is with the permission of the named assured." The insured gave permission to another to use the car for the purpose of going home and changing clothes. Instead of doing that, he drove first to a saloon, there took in three passengers, and drove more than a mile directly away from his home to another drinking place, thence to a third place, then started back toward the garage, intending to find out on the way whether he still had time to go home and change his clothes; if not, to return the car to the garage. The car skidded into a tree, and one of the passengers was killed. The majority of the court, two of the five judges dissenting, held that, the owner having given permission to another to take the car and operate it on the streets of New Haven in order to go to his home, it would be an unreasonable curtailment of the permission granted to hold that any deviation or departure from the purpose so indicated annulled the permission, that the deviations from the permitted use were slight, and in *77 the use of a swiftly moving automobile were too unimportant to have attached to them the import of annulling the protective features of the insurance policy.

It may be conceded that slight deviations by one who has been permitted by the insured to use an automobile for a specified purpose does not destroy the insurer's liability for injuries to the driver or his guests, but that is far from saying that the permission to use an automobile to attend a funeral in the morning in the city in which the insured resides carries with it permission to use the automobile in the afternoon for a joy ride many miles beyond the city limits.

The judgment is affirmed.