Ocean Accident Guarantee Corporation v. Bear , 220 Ala. 491 ( 1929 )

The recovery is rested upon the "omnibus clause" of the policy wherein the Anderson Lumber Company is the insured. As a basis of liability the use of the car must have been with the permission of the Anderson Lumber Company, and such company must have been in position to give such consent. As held in Whitney v. Employers' Indemnity Corporation, 200 Iowa, 25,202 N.W. 236, 239, 41 A.L.R. 495, that question must turn upon ownership of the car at the time of the accident, the court saying: "If it was not the owner, then, of course, the omnibus clause (L) would not operate, and there would be no basis for the operation of clause." Undisputedly Bear had the sole and absolute title to the car. Such being the case, the Anderson Lumber Company was in no position to give permission to plaintiff to use his own car on a pleasure trip of his own. The Whitney Case we consider in principle directly applicable. We think that decision sound and should be here followed.

Upon reconsideration we find ourselves unable to agree to the majority view, and therefore respectfully dissent.