Rhiner v. State Farm Mutual Automobile Insurance

158 S.E.2d 891, 272 N.C. 737, 1968 N.C. LEXIS 728

• Court: Supreme Court of North Carolina
• Decided: February 2, 1968
• Docket: 604
• Status: Published

Opinion

PeR Cueiam.

The case of Hawley v. 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. Insurance Co., supra.

In the case of Bailey v. 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 thé 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. 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 go-, ing 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 im an implied permission.

Plaintiff’s theory of implied permission is strongly negated by the fact'that' alt 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 "úse by the'owner at the "timé* of the accident'.

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

Affirmed.