Bailey v. General Insurance Company of America

144 S.E.2d 898 (1965)

265 N.C. 675

Robert J. BAILEY, by his Guardian, First National Bank of Catawba County, Inc. v. GENERAL INSURANCE COMPANY OF AMERICA, Inc.

No. 361.

Supreme Court of North Carolina.

November 24, 1965.

*900 Byrd, Byrd & Ervin, by Robert B. Byrd, John W. Ervin, Jr., Morganton, for plaintiff appellant.

Hollowell & Stott, Gastonia, and John H. McMurray, Morganton, by Grady B. Stott, Gastonia, John H. McMurray, Morganton, for defendant appellee.

HIGGINS, Justice.

A summary of the evidence presented at the trial is set forth in the statement of facts. When viewed in the light most favorable to the plaintiff, giving him the benefit of all legitimate inferences, and resolving all contradictions and inconsistencies in his favor, if the evidence permits a legitimate inference that at the time of the accident William Harbison, III, was driving the insured vehicle with the permission of Robert T. Stutts, the named insured, the case should have been submitted to the jury; otherwise nonsuit or a peremptory instruction against the plaintiff was required. The sufficiency of the evidence to withstand motion for nonsuit or for a peremptory instruction against the plaintiff presents a question of law for the court. Raper v. McCrory-McLellan Corp., 259 N. C. 199, 130 S.E.2d 281; Walker v. Story, 256 N.C. 453, 124 S.E.2d 113; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579.

The owner's permission for the use of the insured vehicle may be expressed or, under certain circumstances, it may be inferred. "Where express permission is relied upon it must be of an affirmative character, directly and distinctly stated, clear and outspoken, and not merely implied or left to inference. On the other hand, implied permission involves an inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or lack of objection under circumstances signifying assent." Hawley v. Indemnity Ins. Co., 257 N.C. 381, 126 S.E.2d 161; Hooper v. Maryland Casualty Co., 233 N.C. 154, 63 S.E.2d 128; Coletrain v. Coletrain, 238 S.C. 555, 121 S.E.2d 89. However, the relationship between the owner and the user, such as kinship, social ties, and the purpose of the use, all have bearing on the critical question of the owner's implied permission for the actual use. Hawley v. Indemnity Ins. Co., supra; Samuels v. American Auto Ins. Co., 150 F.2d 221, 160 A.L.R. 1191 (10th Ct.); Harper v. Hartford Accident & Indemnity Co., 14 Wis.2d 500, 111 N.W.2d 480.

In this case there is no evidence the named insured had ever seen the driver, Harbison, except on one occasion and that was months before the accident. Evidence is lacking that the owner ever permitted Harbison to drive the insured vehicle or had any knowledge that he had ever done so. Actually, there is no evidence the insured's daughter, Frankie, consented for Harbison to operate the vehicle or knew that he was operating it at the time of the accident. There is no evidence she had authority to give her father's permission for Harbison to drive it on the night of the accident. Ordinarily, one permittee does not have authority to select another permittee without specific authorization from the named insured. Hays v. Country Mutual Ins. Co., 28 Ill. 2d 601, 192 N.E.2d 855; Peterson v. Sunshine Mutual Ins. Co., 273 F.2d 53 (8th Cir.); West v. McNamara, 159 Ohio St. 187, 111 N.E.2d 909; Hamm v. Camerota, 48 Wash. 2d 34, 290 P.2d 713; 160 A.L.R., p. 1195, et seq.; 5 A.L.R.2d 666.

The provisions of the defendant's policy are drawn in conformity with the requirement of G.S. § 20-279.21(b) (2). Thus far the omnibus clause has been interpreted *901 by this Court according to the "moderate" rule rather than the "hell and high water" rule, as applied in Parks v. Hall, 189 La. 849, 181 So. 191; Coco v. State Farm Mutual Auto Ins. Co., 136 So. 2d 288 (La.App.); and recommended in 41 N.C. Law Review 232 et seq.

The plaintiff's evidence fails to show his injury is covered by the defendant's policy. Failure to show coverage requires nonsuit. Kirk v. Nationwide Mutual Ins. Co., 254 N.C. 651, 119 S.E.2d 645; Slaughter v. State Capital Life Ins. Co., 250 N.C. 265, 108 S.E.2d 438; Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214.

The judgment entered in the Superior Court of Burke County is

Affirmed.