Rhiner v. State Farm Mutual Automobile Ins. Co.

158 S.E.2d 891 (1968)

272 N.C. 737

Eugene F. RHINER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation.

No. 604.

Supreme Court of North Carolina.

February 2, 1968.

*892 Everett L. Doffermyre, Dunn, and James F. Penny, Lillington, for plaintiff.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant.

PER CURIAM.

The case of Hawley v. Indemnity Insurance Co., 257 N.C. 381, 126 S.E.2d 161, contains a full discussion of the rules governing permission which will effectuate coverage under the usual omnibus clauses in liability insurance policies. This jurisdiction has thus far adopted the moderate or "minor deviation" rule, i. e., "A material deviation from the permission given constitutes a use without permission, but a slight deviation is not sufficient to exclude the employee from the coverage under the omnibus clause." This permission may be either express or implied. Hawley v. Indemnity Insurance Co., supra.

In the case of Bailey v. General Insurance Co., 265 N.C. 675, 144 S.E.2d 898, the Court in considering permission as used in an omnibus clause of a liability insurance policy, stated:

"`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."

The evidence in this case shows that the owner of the automobile agreed that Thompson should use his vehicle for the purpose of going to the Market House in the City of Raleigh, located less than ten city blocks away, to pick up some clothes. The owner further stated: "I want you to be careful and come back and bring me a bottle of liquor." Whereupon, the driver left the City of Raleigh and proceeded to drive a distance of approximately twenty miles, where he was involved, about two hours later, in the wreck complained of. Considering these facts under the express permission rule, the evidence shows a major deviation from the express permitted use.

However, appellant contends that because of the social relationship and the showing that Thompson had driven the automobile on three or four other occasions, an inference was raised sufficient to show a course of conduct resulting in an implied parmission.

*893 Plaintiff's theory of implied permission is strongly negated by the fact that all the evidence shows Thompson had use of the automobile by virtue of a restricted express permission, and when all the evidence is considered in the light most favorable to the plaintiff, we do not think the evidence shows a course of conduct sufficient to show permissive use by the owner at the time of the accident.

We hold that Thompson's use of the automobile was without the permission of the owner. Thus, plaintiff's injury is not covered by defendant's policy, and the trial judge correctly allowed defendant's motion for judgment as of nonsuit.

Affirmed.