Hunton v. McCarvel, 37407

• Decision Date: 12 November 1964
• Docket Number: No. 37407,37407
• Citation: 65 Wn.2d 242,396 P.2d 639
• Parties: Thomas A. HUNTON, Respondent, v. Francis James McCARVEL, Defendant, and Trinity Universal Insurance Company, a corporation, Appellant.
• Court: Washington Supreme Court

Page 242

65 Wn.2d 242

396 P.2d 639

Thomas A. HUNTON, Respondent, v.Francis James McCARVEL, Defendant and Trinity Universal Insurance Company, a corporation, Appellant.

No. 37407.

Supreme Court of Washington, Department 2.

Nov. 12, 1964.

H. Earl Davis, Spokane, Edgar E. Neal, Seattle, for appellant.

Smith, Smith & Smith, Del Cary Smith, Lawrence Cary Smith, Spokane, for respondent.

WEAVER, Judge.

Title to the automobile was in the name of the mother; possession was in an adult son away from home attending college.The omnibus clause in the liability insurance policy on the vehicle, which designated the father as the 'named insured,' provided in part:

'Persons Insured--The following are insureds under Part I:

'(a) With respect to the owned automobile,

'(1) the named insured and any resident of the same household,

'(2) any other person using such automobile, provided the actual use thereof Is with the permission of the named insured;

'* * *' (Italics ours.)

The son gave his roommate, McCarvel, permission to use his car to bring two girls to the home in which McCarvel and the son were living in order that the four might watch a television show.McCarvel's car was not available at the time because his brother was using it.

Only one girl returned with McCarvel; the son retired.When the television show was over McCarvel drove the girl to her destination.He used the son's car without further permission, although his own car was then available.On the return trip, McCarvel negligently caused an accident in which the plaintiff was injured.

Plaintiff recovered judgment against McCarvel.Neither the son nor his parents were parties to the action.After judgment, plaintiff garnished appellant insurance company against which the trial court entered judgment.

It is conceded by both parties that McCarvel did not have Express permission from the named insured.The question is whether there was an Implied permission from the named insured to the subpermittee, McCarvel to use the car.If implied permission exists, the judgment must be affirmed.Plaintiff argues that there are basically two types of implied permission.

The first concerns a situation in which the named insured had knowledge that the original permittee allowed others to operate the insured automobile and failed to prohibit such use.Odden v. Union Indemnity Co., 156 Wash. 10, 286 P. 59, 72 A.L.R. 1363(1930).In the instant casethe father, the named insured, who had never met McCarvel testified that he and his wife had purchased the car for their son, but for '* * * his use alone and not for the purpose of allowing him to allow others to drive it.'

The father also testified that he had no knowledge that his son had ever allowed anyone else to use the car.The mother testified that on one occasion she knew that her son had loaned the car to another.She disapproved of the act and warned her son not to let others use it.This is not sufficient to establish a course of conduct; hence, there was not substantial evidence from which the trial court could conclude that the named insured had knowledge that others were using the car.

The second type of implied permission encompasses a situation in which the named insured of an automobile entrusts its use to the first permittee, usually a son, daughter, or other member of the family, to use as his own without restrictions as to time or manner of...