Aetna Casualty & Surety Co. v. Lumbermen's Mutual Casualty Co.

MORRIS, Judge.

Although the policies involved in this litigation were attached to the pleadings and introduced into evidence as exhibits, neither was sent up with the record nor does the record contain any stipulation giving a verbatim quote of the pertinent portions of either policy. Lumbermen’s, in its further defense, alleges that its policy “included a provision enumerated as III (a) which extended coverage to any person while using the insured automobile ‘provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.’ ” The Earnhardts admitted the policy included this phraseology but alleged the policy had other provisions. The issues submitted to the jury as to Aetna were: “Did the defendant Penny Kay Earnhardt Farabee operate the 1955 Ford automobile without the permission of Geraldine Troutman on Dec. 19, 1967, as alleged in the complaint?” and “If not, (sic) did the defendant Penny Kay Earnhardt Farabee operate the 1955 Ford auto-bile without reasonable ground to believe that she had the permission of Geraldine Troutman to so operate the Ford automobile as alleged in the complaint?” There appears to be no conflict as to the terms of the two policies: Lumbermen’s required actual permission, and Aetna’s required actual permission or reasonable grounds to believe that permission had been granted.

Aetna’s evidence came from Geraldine Troutman, Mrs. Carlie Styers, and Cathy Bentley James.

Mrs. Troutman testified that she worked as a maid at the school attended by Penny and Linda; that she used her father’s car to drive to and from her work; that she had, on one occasion, allowed Penny Earnhardt to use the car, but had been told she should not do so; that on 19 December 1967, these girls came to her several times requesting permission to use the car but on each occasion she refused and never did give either girl permission to use the car.

Mrs. Styers testified that she was Mrs. Troutman’s supervisor ; was with Mrs. Troutman all morning and heard the girls on several occasions ask Mrs. Troutman for permission to use the car. She further testified that each time they asked they were refused and that she heard Mrs. Troutman tell them that one reason was that her father might want the car.

Cathy James, a student at the school, testified that she talked to Penny and Linda in the school clinic. “They just told me they was going to leave school and asked me if I wanted to go along. They said how they were going. Said they was getting Mrs. Geraldine’s car. Mrs. Troutman’s car. The 1955 Ford. The girls went out and asked for permission to use the car. I did not learn whether they got permission there in the clinic. Linda left for a while and came back to the clinic. Penny was there in the clinic when Linda came back. Linda said Mrs. Troutman told her she could not have the car. Penny told her to go back and ask again. Linda came back into the clinic. Penny was there. I was there. Linda said at the time she said they couldn’t have the car. Still couldn’t have the car. Penny said go back and ask again; she kept sending her out. The last time I saw them in the clinic — the last time Linda told Penny they didn’t have permission to use the car, that’s when they started to leave.”

Estel Doby testified for Lumbermen’s that he owned the car and had told his daughter on that day that if he needed it he would come and swap cars with her. On cross-examination, he testified that his daughter used the car with his permission; that she had no reason to let anybody have it; that he didn’t know anybody had ever driven it; and that he had told her not to let anybody drive it.

Penny Earnhardt Farabee testified for defendants that she had driven the 1955 Ford on another occasion; that she hadn’t asked to use it but “I knew it was all right to drive the automobile because she told Kathy it was”; that on this particular day, the day of the accident, when she went with Linda to ask Mrs. Troutman for the use of the car, “she said it was hard to start that morning and she was afraid if we took the car we might not get back; she didn’t say yes; she didn’t say no.” She testified that she saw Linda talking with Mrs. Troutman later but did not know what they said because they were far up the hall; that a second time Linda went to ask her. Over objection by Lumbermen’s and Aetna, Penny was allowed to testify that when Linda came back, Linda said “she said we could,” that Joyce Keller was present at the time and the witness asked Linda “ ‘Are you sure?’ and she said yes.”

Judy Keller Hedrick testified over objection that Penny told her they had permission to use it and asked if she wanted to go along.

Appellant assigns as error the court’s allowing a directed verdict in favor of defendant Lumbermen’s upon the grounds that the evidence was insufficient to take the question of Lumbermen’s coverage of the automobile involved to the jury. Appellant contends that proof of ownership of the vehicle is also prima facie proof of agency, under G.S. 20-71.1 (a) which provides : “In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent and knowledge of the owner in the very transaction out of which said injury or cause of action arose.” (Emphasis ours.) This action is not an action to recover damages for injury to the person or to the property or for the death of a person arising out of an accident or collision involving a motor vehicle. This is an action brought by an insurer against another insurer to have the Court declare the rights and obligations of the insurers under their policies of insurance. What we said in Phillips v. Insurance Co., 4 N.C. App. 655, 167 S.E. 2d 542 (1969), is applicable here. This is not the type of case to which the statute was intended to apply.

The only evidence as to permission competent as to Lumbermen’s was all to the effect that no permission was given. Whether incompetent evidence is to be considered on a motion for directed verdict is not presently before us. We have previously said that a motion for directed verdict under the new rules produces virtually the same effect and ordinarily will be treated the same as a motion for nonsuit under the old rules in determining whether the evidence should be submitted to the jury. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E. 2d 885 (1970) ; Sawyer v. Shackleford, 8 N.C. App. 631, 175 S.E. 2d 305 (1970) ; Anderson v. Mann, 9 N.C. App. 397, 176 S.E. 2d 365 (1970). It follows, we think, that those classes of cases not subject to nonsuit under the old rules would not be ordinarily subject to directed verdict under the new rules. A nonsuit was prohibited in caveat proceedings. In re Will of Redding, 216 N.C. 497, 5 S.E. 2d 544 (1939). The Supreme Court adopted the rule that a judgment of nonsuit may not be entered in a declaratory judgment action. Hubbard v. Josey, 267 N.C. 651, 148 S.E. 2d 638 (1966) ; Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E. 2d 654 (1964) ; Board of Managers v. Wilmington, 237 N.C. 179, 74 S.E. 2d 749 (1953). See also Chatfield v. Farm Bureau Mutual Automobile Ins. Co., 208 F. 2d 250 (C.A. 4th Cir.) (1953). Since the nonsuit and directed verdict are so analogous, we are of the opinion that directed verdict here was not appropriate. Upon the evidence in this case, a peremptory-instruction in favor of Lumbermen’s would have been appropriate.

New trial.

Judges Brock and Vaughn concur.