Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 19608

• Decision Date: 05 April 1973
• Docket Number: No. 19608,19608
• Citation: 260 S.C. 350,195 S.E.2d 711
• Court: South Carolina Supreme Court
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., of whom State Farm Mutual Automobile Insurance Company is, Defendant-Appellant, and National Grange Mutual Insurance Company et al., are, Respondents.

Page 711

195 S.E.2d 711

260 S.C. 350

ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., of whom State Farm Mutual Automobile Insurance Company is, Defendant-Appellant and National Grange Mutual Insurance Company et al., are, Respondents.

No. 19608.

Supreme Court of South Carolina.

April 5, 1973.

Haynsworth, Perry, Bryant, Marion & Johnstone, and Wyche, Burgess, Freeman & Parham, Greenville, for appellants.

Rainey, Fant & McKay, and Abrams, Bowen & Townes, Greenville, for respondents.

LITTLEJOHN, Justice:

Mitchell K. Robertson, Jr., was killed in a two-car collision about 10:30 p.m. on September 11, 1971, while driving a Pontiac automobile owned by his wife, Linda Horton Robertson. This action was brought for a declaratory judgment to determine the liability of insurance companies which are parties to this proceeding. The liability hinges on the answer to the one question which the judge submitted to the jury, as follows:

'State whether or not Mitchell K. Robertson, Jr., was operating the 1965 Pontiac with the consent, expressed or implied, of its owner Linda Horton Robertson, . . .'

The jury answered the question in the affirmative. The plaintiff, Allstate Insurance Company, and the defendant, State Farm Mutual Automobile Insurance Company, were adversely affected by the jury decision and both have appealed. They phrase five exceptions and suggest three questions in their brief, but we think there is only one basic issue for determination by this Court. It may be fairly stated as follows:

Is the evidence, considered as a whole, susceptible for the inference that Mitchell K. Robertson, Jr. was driving the Pontiac of Linda Horton Robertson with her consent, expressed or implied, when it collided with another vehicle about 10:30 p.m., September 11, 1971?

We review the evidence, not to weigh it (which is the province of the jury), but to determine if there is any to be weighed (which is the province of the court). In overruling the motions for a directed verdict and for judgment notwithstanding the verdict (which is the error alleged), the trial judge was required to view the evidence in the light most favorable to the respondents. We do the same.

Linda and Mitchell Robertson, Jr., were married in 1964. He was twenty-four years of age and she was sixteen. To this marriage one child, a son, was born approximately two years after the marriage. About five years later, they were separated but not divorced. Mitchell went to live with his parents about six miles north of Greer, and Linda went to live with her mother and subsequently obtained her own apartment. Custody of their son was agreed upon between them without the necessity of a written agreement or court order. From time to time, Mitchell would pick up their son at her apartment and the relationship between the estranged couple remained friendly, if not cordial.

Several days before the collision, Mitchell phoned Linda and learned that her Pontiac was not operating properly. He agreed to repair it for her without charge. His father, being a county employee, was able to procure the parts for them at wholesale cost, which she agreed to pay. Mitchell agreed to pick up her car on Saturday, September 11. On that morning, he drove his personal automobile from his parents' home to Linda's apartment. He was not working that day but Linda was. He arrived about 7 o'clock in the morning and left his car for Linda to use throughout the day. She told him that she was planning to drive to Asheville that afternoon and would need the Pontiac back around 4 or 4:30 o'clock.

The evidence is silent as to Mitchell's activities during the morning and early afternoon, but it reflects that he washed the Pontiac about 3 o'clock in the afternoon at the home of his parents. About 4 o'clock in the afternoon, he took the Pontiac to a Gulf station on Wade Hampton Boulevard in Greenville and worked on it until about 5:30. At approximately 5:30,...