Hooper v. Maryland Casualty Co. , 233 N.C. 154 ( 1951 )

63 S.E.2d 128 (1951) 233 N.C. 154

HOOPER
v.
MARYLAND CASUALTY CO.

No. 746.

Supreme Court of North Carolina.

February 2, 1951.

Higgins & McMichael, Winston-Salem, for plaintiff, appellant and appellee.

Deal & Hutchins, Winston-Salem, for defendant, appellant and appellee.

ERVIN, Justice.

Omnibus or extended coverage clauses in policies of automobile liability insurance have provoked much litigation in other jurisdictions in cases where employees were driving motor vehicles belonging to their employers. Annotation: 5 A.L.R. 2d 600-668. But diligent research by counsel and the court fails to uncover any North Carolina decision directly pertinent to the problems posed by the plaintiff's appeal. Since the present record makes these problems so fundamentally factual in nature, however, there is no occasion at this time for us to choose between the differing constructions put upon such clauses by other courts, or to mark out for ourselves the precise legal boundaries of the clause embodied in the policy in suit. We even refrain from voicing any preference between the exact meaning accorded by some courts to the specific requirement that "the actual use is with the permission of the named insured," Johnson v. Maryland Casualty Co., D.C., 34 F. Supp. 870, reversed on other grounds in 7 Cir., 125 F.2d 337; Gulla v. Reynolds, 82 Ohio App. 243, 81 N.E.2d 406, affirmed in 151 Ohio St. 147, 85 N.E.2d 116; Brown v. Kennedy, 141 Ohio St. 457, 48 N.E.2d 857; Laroche v. Farm Bureau Mut. Automobile Ins. Co., 335 Pa. 478, 7 A.2d 361; Conrad v. Duffin, 158 Pa.Super. 305, 44 A.2d 770; Troiano v. Cook, Pa.Com.Pl., 20 Lehigh Co. L.J. 159, and the indefinite sense assigned by other tribunals to that requirement. Vezolles v. Home Indemnity Co., New York, D. C., 38 F. Supp. 455, affirmed in Yorkshire Indemnity Co. of New York, v. Collier, 6 Cir., 172 F.2d 116; Stanley v. Cryer Drilling Co., 213 La. 980, 36 So. 2d 9; Donovan v. Standard Oil Co. of Louisiana, La.App., 197 So. 320; Farnet v. De Cuers, La.App., 195 So. 797; Haeuser v. Ætna Casualty & Surety Co., La.App., 187 So. 684.

The major question raised by the plaintiff's appeal is whether the plaintiff produced sufficient evidence at the trial to warrant a finding by a jury that the employee, Glenn, was operating the Chevrolet truck at the time of the accident with the permission of the employer and named insured, the Pine Hall Brick and Pipe Company. The minor question relates to the admissibility of the extra-judicial statements of Glenn to the plaintiff.

The permission which puts the omnibus or extended coverage clause of the policy into operation may be either express or implied. Hodges v. Ocean Accident & Guarantee Corporation, 66 Ga.App. 431, 18 S.E.2d 28. But whether the permission be expressly granted or impliedly conferred, it must originate in the language or the conduct of the named insured or of some one having authority to bind him in that respect. Fox v. Employers' Liability Assurance Corporation, Limited, of London, England, 243 A.D. 325, 276 N.Y.S. 917, affirmed in 267 N.Y. 609, 196 N.E. 604; Hunter v. Western & Southern Indemnity Co., 19 Tenn.App. 589, 92 S.W.2d 878; Locke v. General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland, 227 Wis. 489, 279 N.W. 55; Brochu v. Taylor, 223 Wis. 90, 269 N.W. 711.

The answer to the minor question presented by the plaintiff's appeal is to be found in this principle. Glenn could not define or enlarge the scope of his permitted use of his employer's truck by anything said or done by him without the knowledge of his employer, or its proper representatives. In consequence, the trial judge rightly rejected the extra-judicial statements of Glenn to the plaintiff. The proffered testimony had no relevancy to the issue of whether Glenn was using the truck at the time of the plaintiff's injury with the permission of the Pine Hall Brick and Pipe Company. In the very nature of things, that issue had to be determined from evidence of the words of those having authority to grant permission for the Pine Hall Brick and Pipe Company, or from evidence of dealings between the Pine Hall Brick and Pipe Company and Glenn.

In passing on the sufficiency of the plaintiff's evidence to carry the case to the jury, we are confronted by the paradoxical circumstance that such evidence is more significant for the things it conceals than it is for the things it reveals. It does not indicate that Glenn had authority to carry others in his employer's truck, or to engage others to labor for his employer, or to delegate to others tasks he was obligated to perform for his employer. It commits to pure speculation these important matters: What hours did the Pine Hall Brick and Pipe Company observe in the conduct of its business? What working hours did it assign to Glenn ? Was Glenn required by the terms of his employment to begin his day's work "around four o'clock in the morning"?

The Pine Hall Brick and Pipe Company gave Glenn express permission to use its truck in its business. The plaintiff asserts that Glenn was en route to the manufacturing plant of his employer at Pine Hall for a load of bricks at the time of the accident, and as a consequence was then acting within the scope of this express permission. When all is said, the testimony respecting the use of the truck at the time in controversy comes simply to this: That Glenn, the regular driver of the named insured, and the plaintiff, an insurance collector, were near neighbors in Winston-Salem; that at "around 4:00 o'clock A.M., on February 15, 1947", Glenn drove the plaintiff in the named insured's truck from the home of the plaintiff in Winston-Salem to the residence of the plaintiff's sister on Whitfield Road near Winston-Salem, where they stopped and visited for fifteen minutes; that they thereupon re-entered the truck and were proceeding along Whitfield Road towards "old highway 311" with Glenn driving, when the accident happened; that Whitfield Road was neither the direct nor the customary route of travel between Winston-Salem and Pine Hall; and that "old highway 311" afforded persons reaching it via Whitfield Road access to Winston-Salem, Pine Hall, and many other places. We are compelled to hold that these circumstances are not sufficient to show that at the time of the accident Glenn was going to the named insured's manufacturing plant at Pine Hall for a load of brick. They rather give rise to the inference that Glenn was using the truck for his own convenience and that of the plaintiff.

In reaching this conclusion, we do not overlook the testimony of the plaintiff, which was received over the objection and exception of the defendant, that he and Glenn had "started to Pine Hall to load the truck with brick." This statement is simply evidence by the plaintiff as to his state of mind, and that of Glenn. It is without probative value. There is no logical relation between the plaintiff's state of mind and the matter in issue, i.e., whether Glenn was using the truck with the permission of the Pine Hall Brick and Pipe Company. While the act of Glenn in driving the truck along the Whitfield Road was equivocal in character, and Glenn could have testified directly as a witness in the case as to the intent with which that act was done by him, the plaintiff could not possibly possess any personal knowledge in respect to Glenn's intention.

The Pine Hall Brick and Pipe Company entrusted the truck to Glenn for a strictly business purpose. There is not a word in the record to indicate that he used it for any other purpose before the morning of the accident, or that his employer knew that he was using it at all on that occasion. These things being true, the testimony offers no basis for an inference that the Pine Hall Brick and Pipe Company had impliedly extended to Glenn permission to use the truck for his own convenience and that of the plaintiff. Brochu v. Taylor, supra.

It follows, therefore, that the trial judge did not err in nonsuiting the action. This conclusion finds complete support in many well considered decisions in other jurisdictions. Jordan v. Shelby Mut. Plate Glass & Casualty Co., 4 Cir., 142 F.2d 52; Standard Accident Ins. Co. v. Rivet, 5 Cir., 89 F.2d 74; Globe Indemnity Co. v. Nodlere, 10 Cir., 69 F.2d 955; Maryland Casualty Co. v. Matthews, 237 Ala. 650, 188 So. 688; Mycek v. Hartford Acc. & Indem. Co., 128 Conn. 140, 20 A.2d 735; Byrne for Use of King v. Continental Casualty Co., 301 Ill.App. 447, 23 N.E.2d 175; Wilson v. Farnsworth, La.App., 4 So. 2d 247; Stephenson v. List Laundry & Dry Cleaners, La.App., 168 So. 317; Waddell v. Langlois, La.App., 158 So. 665; Gearin v. Walsh, 299 Mass. 145, 12 N.E.2d 66; Dickinson v. Great American Indemnity Co., 296 Mass. 368, 6 N.E.2d 439; Sauriolle v. O'Gorman, 86 N.H. 39, 163 A. 717; Penza v. Century Indemnity Co., 119 N.J.L. 446, 197 A. 29; Nicholas v. Independence Indemnity Co., 165 A. 858, 11 N.J. Misc. 344; Fox v. Employers' Liability Assurance Corporation, Limited, of London, England, supra; Kazdan v. Stein, 26 Ohio App. 455, 160 N.E. 506, affirmed in 118 Ohio St. 217, 160 N.E. 704; Denny v. Royal Indemnity Co., 26 Ohio App. 566, 159 N.E. 107; Powers v. Wells, 115 Pa.Super. 549, 176 A. 62; Indemnity Ins. Co. v. Jordan, 158 Va. 834, 164 S.E. 539; Cypert v. Roberts, 169 Wash. 33, 13 P.2d 55.

Inasmuch as the judgment rendered in the court below was entriely in favor of the defendant, it has no right to appeal. As a consequence, its appeal must be dismissed. McCullock v. North Carolina R. R. Co., 146 N.C. 316, 59 S.E. 882; Lenoir v. South, 32 N.C. 237.

Judgment affirmed on plaintiff's appeal.

Defendant's appeal dismissed.