
    Kazdan v. Stein et al.
    
      Insurance — Automobile personal liability — 'Coverage while automobile used with express or implied consent of insured— Consent not implied from continued use of car, when — ■ Use without owner’s consent established by evidence and verdict directed — Subrogation against insurer — Sections 9510-3 and 9510-4, General Code.
    
    1. Whether a consent is express or implied depends on conduct of party whose consent must be had, and implication in order to have legal significance must have element of mutuality.
    2. In action, under Sections 9510-3 and 9510-4, General Code, on automobile liability policy, providing coverage for benefit of any person operating automobile with 'express or implied consent of insured, evidence held to establish, as matter of law, that use of car by another at time of injury to plaintiff was without owner’s consent.
    (Decided May 30, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Payer, Minshall, Kareh <& Kerr, for plaintiff in error.
    
      Messrs. Dustin, McKeehan, Merrich, Arter S Stewart, for defendant in error.
   Sullivan, P. J.

The question at issue in this cause is whether the court of common pleas of Cuyahoga county committed prejudicial error in directing a verdict for the defendant the -¿Etna Life Insurance Company at the close of the plaintiff’s case.

The foundation for the action is a clause in the provisions of the policy, as follows:

“Subject otherwise to all provisions of the policy, it is agreed that while any automobile covered under clauses 4 and 5 of the policy is being used with the express or implied consent of the named assured * * * any insurance granted * * * shall, in addition to the named assured, inure to the benefit of any person riding in said automobile as well as to the benefit of any person, firm, or corporation responsible for the operation of said automobile.”

The specific question which is determinative of the question of error raised is whether there is in the record a scintilla of evidence', under the rules of law, showing that the automobile covered by the insurance policy was being used at the time of the accident with the express or implied consent of the named assured, to wit, one Gordon.

Max Kazdan, the plaintiff in error, on- June 30, 1921, was injured by being struck by an automobile driven and operated by one Garry Stein, which is the vehicle insured by the policy named in the record. In a suit other than the instant case, commenced in the court of common pleas by Kazdan against Stein, the driver, and his employer, Gordon, the owner of the car, there was an election as to whether the suit should proceed against Stein or Gordon, and the ease against Gordon was dismissed upon the trial and a verdict of $10,000 was rendered against Stein, but no part of it has ever been collected, and it is intimated in the record that it is uncolleetable.

Sections 9510, 9510-3, and 9510-4, General Code, provide that Kazdan is entitled to be subrogated to the rights of the insured against the insurer. The latter two- sections read:

“Section 9510-3. In respect to every contract of insurance made between an insurance company and any person, firm or corporation by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or death by accident of any person for which loss or damage such person, firm or corporation is responsible, whenever a loss or damage occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured, after the said assured has become responsible for such loss or damage or death, and any such cancellation or annullment shall be void.
“Section 9510-4. Upon the recovery of a final judgment against any firm, person or corporation by any person, including administrators and executors, for loss or damage on account of bodily injury or death, if the defendant in such action was insured against loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in a legal action against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.”

Thus the foregoing show the legal status of the parties to this litigation, and we proceed to examine the record to ascertain whether the motion to direct a verdict for the defendant the .¿Etna Life Insurance Company was well taken, and therefore whether the court below committed error in directing a verdict accordingly.

There is no claim made that when the plaintiff rested his case there was any evidence of an express consent of the named assured, and the only question is whether, from the record, there appears an implied consent. In the able brief, and in the oral argument of counsel for plaintiff in error, it is urged that inasmuch as the record shows a continuous use on the part of the driver, Stein, of the automobile in question, such use imports an implication of consent on the part of Gordon, the assured and owner of the automobile.

Whether a consent is express or implied depends upon the conduct of the party whose consent must be had. Whatever may be the act, circumstance, or fact, in order to recover under the terms of the agreement there must be a connection made-with the conduct of the party whose consent, either express or implied, is necessary. Thus there may be acts, circumstances, and facts, such as the continued use of the car, but unless they attach themselves in some way to the acts of the party whose consent must be had there can be no implication of consent arising, because consent signifies some-fact or circumstance proceeding from the party who-must consent in order to make the act valid. In other words, there must be a nexus between the acts and the voluntary action on the part of him who must consent. The implication, in order to-have legal significance, must have the element of mutuality, because in implied consent it is just as necessary to show mutuality as it is in express consent, and as to the latter there is no question that a mutuality of agreement must exist. It is just as necessary in implied consent.

In Cuneo v. De Cuneo, 24 Tex. Civ. App., 436, 59 S. W., 284, 285, the court charged the jury as follows:

“An implied agreement is one where the conduct of the parties with reference to the subject-matter is such as to induce the belief that they intended to do that which their acts indicate they have done.”

In Bixby v. Moor, 51 N. H., 402, 403, the court said:

“In such cases it is sometimes said that ‘the law implies an agreement.’ * * * Strictly speaking, this is inaccurate. The agreement, though not fully expressed in words, is, nevertheless, a genuine agreement of the parties; it is ‘implied’ only in this, that it is to be inferred from the acts or conduct of the parties instead of from their spoken words; ‘the engagement is signified by conduct instead of words.’ But acts intended to lead to a certain inference may ‘express a promise as well as words would have done.’ ”

Thus it is well settled by these and many other authorities that the implied consent necessary under the terms of the policy must arise by way of inference or deduction from the acts and conduct of not only one of the parties, but of both the parties, and in the instant case we find no evidence of such a legal status in the record. On the contrary, we find with regard to the testimony of Stein and Gordon, the driver and owner, respectively,, that the nse of the car for uses other than those named in the policy was not known in any way to Gordon, and thus in addition to the failure of any inference arising in the record as to implied .consent we have the negation of both of these important witnesses to the challenge of consent. Thus it appears from the record that the lower court made no mistake in sustaining the motion to direct a verdict, for the reason that the record not only warranted, but compelled, such judicial action-Holding these views, the judgment of the lower-court is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  