Dearybury v. New Hampshire Insurance

179 S.E.2d 206, 255 S.C. 398, 1971 S.C. LEXIS 373

• Court: Supreme Court of South Carolina
• Decided: February 3, 1971
• Docket: 19163
• Status: Published

Opinions

Brailsford, Justice.

This appeal involves the application of the omnibus clause of an automobile liability insurance policy on a state of facts which, in the light of the jury’s verdict as construed by the trial judge, cannot be distinguished from the facts in State Farm Mutual Auto. Ins. Co. v. Allstate Ins. Co., S. C., 179 S. E. (2d) 203, filed herewith.

The named insured furnished an automobile for the general use of his sixteen-year-old daughter, Gloria, and forbade her to allow anyone else to drive the car.

* While on a pleasure ride with her teenage friend, William, she invited him to drive and was seriously injured in a collision which occurred while he was doing so. This action for judgment declaring that William was, in operating the automobile, an insured under the omnibus clause of her father’s policy followed.

The jury found against coverage, but the trial judge granted judgment non obstante veredicto declaring that the policy issued to Gloria’s father by the defendant insurance company provided primary coverage to William for all claims arising out of the accident. The court, relying upon the cases annotated in 4 A. L. R. (3d) 10 (1965), referred to in State Farm, supra, held that it was immaterial whether Gloria’s father had forbidden her to allow another to drive the automobile, saying, “It is the permission to use and not the permission to operate which is controlling.” This conclusion is opposed by our opinion in State Farm, unless it is justified by policy language affording broader omnibus coverage than required by our statute. We quote from the policy:

“Persons insured: the following are insureds under Part 1:

* * any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * *

Although there are immaterial differences in verbiage, the policy definition down to the proviso adheres strictly to the statute. The proviso does not broaden the definition in any way. Instead, its obvious purpose is to provide a shield against the so-called liberal view adopted by some courts in construing omnibus coverage, holding that permission to use an automobile for one purpose implies permission to use it for all purposes, a construction which we rejected as unsound in Rakestraw v. Allstate Ins. Co., 238 S. C. 217, 227, 119 S. E. (2d) 746, 750 (1961).

Reversed and remanded.

Moss, C. J., and Littlejohn, J., concur. Bussey, J., concurs specially in separate opinion. Lewis, J., dissents.

Conflicts in the testimony on this point were settled by the verdict.