Aetna Cas. & Sur. Co. v. Lumbermen's Mut. Cas. Co.

• Citation: 181 S.E.2d 727,11 N.C.App. 490
• Decision Date: 23 June 1971
• Docket Number: No. 7122SC95,7122SC95
• Court: North Carolina Court of Appeals
• Parties: The AETNA CASUALTY AND SURETY COMPANY v. LUMBERMEN'S MUTUAL CASUALTY COMPANY et al.

Page 727

181 S.E.2d 727

11 N.C.App. 490

The AETNA CASUALTY AND SURETY COMPANY v. LUMBERMEN'S MUTUAL CASUALTY COMPANY et al.

No. 7122SC95.

Court of Appeals of North Carolina.

June 23, 1971.

White, Crumpler & Pfefferkorn by Joe P. McCollum, Jr., Winston-Salem, for defendant Marie O. Conrad, Administratrix of the Estate of Linda Jo Conrad, appellant.

Walser, Brinkley, Walser & McGirt, by Walter F. Brinkley, Lexington, for defendant Lumbermen's Mutual Casualty Co., appellee.

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 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 automobile 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 the 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 Cathy 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...