and that permission to use an automobile does not in itself, by implication, include an authority to delegate such permission to a third person.'
On the other hand the Court quoted from Section V, subsection b.1, 160 A.L.R., page 1213, as follows:
"It has been held in the great majority of cases that the initial permission given by the named assured to the original permittee includes, by implication, authority to delegate the operation of the automobile to an agent or servant where the original permittee is riding with the agent or servant in the car."
After noting that 'the cases cited by the textwriter as authority for the broad and sweeping statements which he has made are either wholly inapposite, distinguishable or in fact directly to the contrary', the Court does go on to cite cases where the second permittee was held to be an additional insured. Then follows this comment:
'Likewise in the following cases these special factors existed: In Glens Falls Indemnity Co. v. Zurn, 7 Cir., 1937, 87 F.2d 988, the named insured had consented to the use of his car in a joint enterprise which was being carried out at the time of the accident; * * *.'
Marshbank, Sr., consented to the use of his car in a joint enterprise to be carried out by his son and Hoak, Jr., and that joint enterprise was being carried out to the letter when the accident occurred.
We need not concern ourselves here as to whether or not there was any delegation of authority. In one sentence the omnibus clause of the policy in suit uses the following words: 'using', 'use', and 'actual use'.
It is admitted that Marshbank, Sr., gave to his son, Marshbank, Jr., permission to use his car for the specific purpose indicated, and the son did so make use of the car personally. There was no delegation of the use. Marshbank, Sr., also, if not in express words, certainly by implication, gave the same permission to Hoak, Jr., as he was present when the request was made and it was made crystal clear to the father that the son and Hoak, Jr., desired the use of the car for the purpose indicated.
In Brown v. Kennedy, 1943, 141 Ohio St. 457, 48 N.E.2d 857, 859, in dealing with a similar coverage the Court said:
'The principal question to be decided here is whether the term 'using' in the insurance policy involved in this case is to be construed as having the limited meaning of driving or operating or is to be given its ordinary signification.
'Under the terms of the policy any person 'using' the automobile mentioned in the policy with the permission of the named insured becomes an insured whom the insurance company is bound to defend and 'to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages.'
'The insurer did not choose to limit its liability to one who operates or drives the automobile but selected a wider term and agreed to insure anyone who used the car with permission.'
Finally, in addition to the express permission granted by Marshbank, Sr., the owner, to Marshbank, Jr., and Hoak, Jr., to use the car and the express permission to Marshbank, Jr., to drive the car, I find solid basis in fact for an implied permission from Marshbank, Sr., to Hoak, Jr., to drive the car.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject matter of this cause of action.
2. Robert S. Marshbank, Jr., and Charles N. Hoak, Jr., were using the automobile in question in a joint enterprise for a common purpose with the express permission of the owner, Robert S. Marshbank, Sr.
3. Charles N. Hoak, Jr., was using said automobile with the express permission of the owner and was driving it with the implied permission of the owner.
4. Robert S. Marshbank, Jr., was an additional assured within the provisions of Policy 25-778263 issued by Maryland Casualty Company to Robert S. Marsbank, the identical person herein referred to as Robert S. Marshbank, Sr.
5. Charles N. Hoak, Jr., was an additional assured within the provisions of Policy 25-778263 issued by Maryland Casualty Company to Robert S. Marsbank, the identical person herein referred to as Robert S. Marshbank, Sr.
An appropriate order may be submitted.