the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person * * * legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission'. (Italics supplied.)
So much for the facts.
On the hypothesis that Williams was driving the truck at the time of the accident, which I find as a fact, there can be no liability on the part of the Casualty Company under the policy, because on the evidence Williams had no permission of any kind to use the truck, and even assuming Jones could delegate his permission, there is no evidence of such delegation. This latter element, among others, takes the case out of the ruling in Hardware Mut. Casualty v. Mitnick, 180 Md. 604, 26 A.2d 393, 394, heavily relied on by the plaintiffs. In that case, the named insured had given permission to use an automobile, to his granddaughter. The permission was unrestricted, both as to time and place, but she had been instructed to allow no one other than herself to drive it. Nevertheless, she affirmatively did permit another to drive it, with herself as a passenger, at the time and the place of the accident. The Court held that, on these facts, she was 'using' the automobile by riding in it while driven by another, and referred to her as the 'director of the enterprise' and the "master of the ship." Such characterization would hardly be applicable to Jones, under the circumstances.
However, plaintiffs insist that the default judgment against Jones is res judicata as to the fact that Jones was the driver of the truck at the time of the collision, and that the Court is foreclosed from taking evidence on that point or making a decision thereon, and must decide the case on the premise that Jones was driving the truck. The authorities are not uniform on this proposition, and there is apparently none bearing directly on the subject in the District of Columbia.
But assuming plaintiffs' position in this regard is correct, and assuming that Jones operated the truck at the time of the collision, I would come to the same conclusion of nonliability on the part of the Casualty Company, and this conclusion would be based on lack of permission from Duhn, the named insured, to Jones, at the time and place of the accident. Prior thereto, he had driven the truck to a place beyond the scope of his permission and engaged in a drinking orgy, and at the time of the collision it was being operated in the State of Maryland in a direction away from both Duhn's place of business and the place where he had been assigned to work. The collision was about two miles from the former and about a mile from the latter. This operation was without specific permission from his employer, was outside the general permission given to him to use the truck in the 'line of his duties,' and was not within the exception to his general permission which allowed him to use the truck to drive to a store to get a sandwich if within a reasonable distance, inasmuch as the distance was not reasonable under the circumstances, and it was not at a time when he was allowed to use the truck for such purpose.
To hold that he had permission from the named insured, Duhn, to use the truck at the place and time of the collision, is therefore untenable unless the initial restricted permission covers by law practically any use thereafter or unless his deviation from a restricted use can be considered to be a minor one. On these points, the United States Court of Appeals for this circuit has spoken, in Bennett v. Amalgamated Cas. Ins. Co., 91 U.S.App.D.C. 279, 200 F.2d 129, and in Hudson v. Lazarus, D.C.Cir., 217 F.2d 344, 346.
The Bennett case, supra, involved a similar clause in an automobile liability policy, and the Court held that a restricted initial permission did not cover an enlarged use thereafter and that that must be specifically given, if coverage is to be provided.
The Hudson case, supra, was concerned with whether consent had been given within the meaning of the Financial Responsibility Act of the District, which provides that one who drives a motor vehicle with the owner's express or implied consent shall, in case of accident, be deemed to be the agent of the owner of such motor vehicle. Sec. 40-403, D.C.Code 1951. In considering this question, the Court made the following pertinent observation:
'There was, then, uncontradicted proof that Juster consented only to Harris's driving the car back to the service station and did not consent to his going, or even stopping, for breakfast. Juster's consent perhaps extended, by implication, to driving back to the station by a more or less circuitous route. But when Harris collided with Hudson, he was not driving back to the station by any route. He was driving away from it. We agree with the District Court that he was clearly not driving with Juster's consent.' (Italics supplied.)
Unless resort be had to semantics, I would assume for this workaday world that 'consent' as used in the Act and 'permission' as used in a liability insurance policy may be considered as practically synonymous. Indeed, that is borne out by another provision of the Financial Responsibility Act, which requires that liability policies shall insure the named insured and any other person using the motor vehicle with the consent, express or implied, of such insured. This would indicate that the words are used interchangeably. On this assumption, the Hudson case is strong, if not compelling, authority for holding that the use of the truck as above outlined on the occasion in question was not a minor deviation from the permission given and was not within the permission. But aside from this decision, the time element alone would appear to take the operation of the truck out of the zone of a minor deviation.
Concluding, as I do, that there was no coverage for Jones for the reasons above stated, it is not necessary to decide whether the Casualty Company is relieved from liability by reason of failure of cooperation on the part of Jones, but the facts in this respect are hereinabove set forth for appellate review in case the same is sought and the Court of Appeals reaches this point.
Accordingly, judgment will be entered for the garnishee.
Because the facts and conclusions of law are set forth herein, it will be unnecessary for counsel to submit further findings as provided by Rule 52, Fed.Rules Civ.Proc. 28 U.S.C.A.