Wilson v. Hartford Accident and Indemnity Co.

158 S.E.2d 1 (1967)

272 N.C. 138

Norman Gene WILSON v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.

No. 685.

Supreme Court of North Carolina.

December 13, 1967.

*5 Schoch, Schoch & Schoch, High Point, for plaintiff appellant.

Morgan, Byerly, Post & Keziah, High Point, for defendant appellee.

LAKE, Justice.

There is no merit in the assignments of error relating to the admission and exclusion of testimony concerning the extent of the permission granted by Benson to Perdue for the use by Perdue of Benson's automobile.

The questions addressed to the plaintiff's witness, to which objections were sustained, were designed to elicit from the witness what statements she heard, or did not hear, Benson and Perdue make to each other concerning the purpose for which Perdue was permitted to use the automobile and when he was to return it. For example, Mrs. Perdue, if permitted to answer the question, would have testified that she did not hear Benson tell Perdue when, where, how or how long Perdue could use the automobile or specify the time when Perdue was to bring it back. Such testimony was properly excluded not because of the hearsay rule, which the plaintiff, in argument, appears to consider the basis of the ruling, but because the prior testimony of this witness disclosed that she did not purport to know all that Benson and Perdue said to each other on this occasion.

Hearsay evidence consists of the offering into evidence of a statement, oral or written, made by a person other than the witness for the purpose of establishing the truth of the matter so stated. The hearsay rule does not apply to testimony that a particular statement was made by some person other than the witness when the fact sought to be established is the making of the statement itself, as distinguished from the truth of the matter so stated. In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332; Stansbury, North Carolina Evidence, 2d Ed., § 138; Wigmore on Evidence, 3d Ed., §§ 1766, 1770; 29 Am.Jur.2d, Evidence, § 497. Thus, in Hunt v. Maryland Casualty Co., 212 N.C. 28, 192 S.E. 843, where, as here, the question at issue was whether the driver of an automobile was, at the time of the accident, driving with the permission of the insured owner, Schenck, J., speaking for the Court, said:

"The objection and exception to the testimony of the plaintiff's witness, *6 Frank Coxe, as to what Richardson said to him at the time Coxe gave Richardson permission to use the automobile, upon the ground that such testimony was hearsay, cannot be sustained, since such testimony was competent to show the purpose for which Coxe permitted Richardson to use the automobile, and the terms of the bailment."

Thus, the testimony of Miss Delores Perdue, to the effect that she was in a position to hear and did hear her father ask Benson if he could use the automobile and did hear Benson reply "Okay," was competent upon the question of the grant of permission to use the car. It is equally well settled that a witness, whose testimony, if true, establishes that she was in a position to hear the entire conversation, may testify that a certain statement was not made therein. That is, a witness, shown to have been in a position to see or hear what occurred, may testify not only to what she saw and heard but also to what she did not see and did not hear. Strong, N.C. Index 2d, Evidence, § 17; Wigmore on Evidence, 3d Ed., § 664; 29 Am.Jur.2d, Evidence, § 258. However, such evidence is not competent unless it has first been shown that the witness was in a position to hear all that was said. As Ervin, J., speaking for the Court, said in Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316, "[A] witness cannot be allowed to testify to the nonexistence of a fact, where his situation with respect to the matter is such that the fact might well have existed without his being aware of it." Accord: State v. Tedder, 258 N.C. 64, 127 S.E.2d 786; Carruthers v. Atlantic & Y. R.R., 215 N.C. 675, 2 S.E.2d 878; Johnson & Sons, Inc. v. Southern R.R., 214 N.C. 484, 199 S.E. 704; Strong, N.C. Index 2d, Evidence, § 17; Wigmore on Evidence, 3d Ed., § 659.

The testimony of each of the plaintiff's witnesses established clearly the possibility that such witness did not hear the entire conversation between Benson and Perdue with reference to the grant of permission to use the automobile on this occasion. Consequently, there was no error in refusing to permit these witnesses to testify as to their failure to hear Benson impose a time limitation upon the use of the automobile.

In any event, any error committed in sustaining objections to questions propounded to Miss Delores Perdue, concerning what she heard or did not hear of the conversation, would not be the basis for a new trial. When this witness was recalled to rebut testimony of Benson on this point, she was permitted to testify to the same things which the record shows she would have said had she been permitted to answer the questions previously propounded to her. "The exclusion of testimony cannot be held prejudicial when the same witness is thereafter allowed to testify to the same import * * *" Strong, N.C. Index 2d, Appeal and Error, § 49; Accord: In re Will of Pridgen, 249 N.C. 509, 107 S.E.2d 160, 75 A.L.R.2d 312.

Obviously, Benson was a competent witness to testify as to the statements he, himself, made to Perdue imposing limitations of time upon Perdue's permission to use the car. There was no inconsistency in the court's permitting Benson to testify as to the express limitations so placed by him upon the permission so granted by him and its refusal to permit the plaintiff's witnesses to testify that they did not hear such statement, in view of their testimony that they may not have heard the entire conversation.

The omnibus clause in the policy issued by the defendant to Benson conforms to the requirements of G.S. § 20-279.21(b)(2).

Under this clause, the coverage of the policy extends to the liability of a bailee of the automobile for an accident only where the bailee's use of the vehicle at the time of the accident is within the scope of the *7 permission granted to him, the burden being upon the plaintiff to show that such use was within the scope of the permission. Hawley v. Indemnity Insurance Co., 257 N.C. 381, 126 S.E.2d 161. Of course, a permission to use an automobile may be implied, and strong social relationships and ties between the owner and the bailee are relevant upon the question of the extent of such implied permission. Bailey v. General Insurance Co., 265 N.C. 675, 144 S.E.2d 898. However, proof of friendly relations, which might otherwise imply permission, cannot overcome the effect of a limitation as to time, purpose or locality expressly imposed by the owner upon the bailee at the time of the delivery of the automobile to the bailee by the owner on the occasion in question. Appleman, Insurance Law and Practice, § 4370. It is well established in this State that when the bailee deviates in a material respect from the grant of permission his use of the vehicle, while such deviation continues, is not a permitted use within the meaning of the omnibus clause of this policy. Bailey v. General Insurance Co., supra; Fehl v. Aetna Casualty & Surety Co., 260 N.C. 440, 133 S.E.2d 68; Hawley v. Indemnity Insurance Co., supra.

The testimony of Benson was to the effect that Perdue, at about noon, asked for permission to use the car "for 15 or 20 minutes to run up to see if his truck was ready," and Benson told him he could use the car but "to come back at one o'clock because I had to go to work." The accident occurred ten hours after the expiration of the time limit thus expressly imposed, assuming this testimony to be true. Such disregard of the time limitation expressly imposed was a material deviation from the grant of permission. Fehl v. Aetna Casualty & Surety Co., supra. The charge of the court below to the jury contained a fair and complete summary of the evidence and a clear and full statement of the principles of law applicable thereto upon this issue. We find no error therein.

No error.