Adamski v. Miller

BECK, Judge,

dissenting:

I believe that the majority has misapplied the law to the facts as found by the trial court, and I therefore must dissent.

In this appeal from the trial court’s denial of a motion for judgment notwithstanding the verdict (j.n.o.v.), we merely must decide whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989). It was, after all, the trial judge who observed the demeanor and relative credibility of the witnesses. We also must examine the evidence in the light most favorable to the verdict winner below. See Belas v. Melanovich, 247 Pa.Super. 313, 372 A.2d 478 (1977). Under this limited scope of review, we may properly accept the trial court’s finding of fact that:

On one occasion prior to the accident, Gower [insured owner] observed Miller driving the vehicle on the opposite side of the road. Gower passed Miller, who was driving the vehicle, on the opposite side of the road. Gower changed the direction of her vehicle and drove up behind Miller, blinking her lights. Gower then pulled over, as did Miller. Gower exited her car, approached Miller, and they had a brief conversation. During that encounter, Gower did not tell Miller that he was not allowed to use her vehicle. Thereafter, Gower did not tell Miller that he was not permitted to use the vehicle.

Finding of- Fact 18, Tr.Ct. Opinion at 4-5. Despite the apparent acceptance of this finding,¹ and the additional findings that Mrs. Gower knew that her daughter and Miller lived together, and that he did not have a car of his own (R. 87a, 89a), the majority here reverses the trial court’s conclusion that Miller had implied permission to operate the insured vehicle. By granting j.n.o.v. in favor of Allstate on this issue,- the majority has misconstrued the applicable case law.

The majority relies upon Volk v. Cacchione, 395 Pa. 636, 150 A.2d 849 (1959), Insurance Co. of N. America v. State Farm Mut. Ins. Co., 266 Pa.Super. 197, 403 A.2d 611 (1979), and State Farm Mut. Ins. Co. v. Judge, 405 Pa.Super. 376, 592 A.2d 712 (1991) to support the conclusion that there was no implied permission in this case. I would agree that the facts in each of these cases indicate that the insured owner did not give implied permission to use the vehicle to the ultimate driver.

In Volk, for example, the insured owner (“father”) permitted his son to drive the insured vehicle on prom night. The son then allowed his friend to borrow the car, during which time it was involved in an accident. The supreme court held that the friend did not have implied permission to use the vehicle, even though the friend, who also worked for the father, occasionally was permitted to use a business vehicle for specific errands as instructed by the father. Aside from these limited instances when the father knew about and approved of the friend’s use of one of father’s automobiles, the friend previously drove the car involved in the accident only on occasions when son also was a passenger. Son was not in the car at the time of the accident. Although the majority states that the son and his friend “frequently borrowed the father’s automobile for social purposes,” it is not clear from the Volk opinion what were the circumstances of such “borrowing,” or even whether the father knew that the friend borrowed the car at these times.

In addition, in Insurance Co. v. State Farm, supra, this court held that the father-owner had not given implied permission to his daughter’s roommate to use his automobile. The father had no knowledge of the roommate’s use, and there was no “connection made with the named insured’s [father’s] own conduct.” Id. at 198, 403 A.2d at 612. In this case, there certainly was a “connection” between Miller’s use of Gower’s automobile, Gower’s own conduct after discovering the use, and her subsequent silence.

Nor is Judge, supra, factually similar to this case. In Judge, this court properly found that there was no implied permission where the insured owner temporarily left his vehicle in the custody of his former girlfriend, with express instructions that she not use it. The fact that the girlfriend’s son previously had driven the car in a parking lot, while the owner was in the car with him, did not give rise to an inference of implied permission. Finally, the fact that the son had driven the vehicle on other occasions without the owner’s consent or approval did not change matters. There was no indication that the owner even knew about these additional driving incidents. Obviously, no implied permission could be inferred from such facts. See also Laroche v. Farm Bur. Mut. Auto. Ins. Co., 335 Pa. 478, 7 A.2d 361 (1939) (driver had owner’s express permission to drive vehicle to Washington, but there was no implied permission for driver’s use of vehicle on another trip); Belas v. Melanovich, supra (where owner allowed her nephew to drive vehicle, and nephew let his friend drive, friend did not have owner’s implied permission to drive).

In none of the cases cited by the majority was there actual knowledge of the use of the automobile coupled with a failure to object by the insured owner. In this case, Mrs. Gower witnessed Miller driving her car, the two immediately pulled over to the side of the road and actually had a conversation, but Mrs. Gower never said anything about Miller’s use of her car. Her failure to object to Miller’s using the car, once she knew that he did so, operates as implied permission.

I would affirm the trial court’s order denying the motion for judgment n.o.v.

1 . Actually, the majority has summarized this finding as follows:

On one occasion prior to the accident, Mrs. Gower observed Miller driving the Nova on the opposite side of the road. Miller and Gower pulled over to the side of the road and exited their vehicles to converse. At no time during their conversation did Mrs. Gower tell Miller that he was not permitted to drive the Nova.

Majority Opinion at 363.