Keeler v. Allstate Ins. Co.

• Decision Date: 27 August 1973
• Docket Number: No. 19682,19682
• Citation: 261 S.C. 151,198 S.E.2d 793
• Court: South Carolina Supreme Court
• Parties: Grady F. KEELER, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.

Page 793

198 S.E.2d 793

261 S.C. 151

Grady F. KEELER, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.

No. 19682.

Supreme Court of South Carolina.

Aug. 27, 1973.

John J. McKay, Jr., and John P. Britton, of Rainey, Fant & McKay, Greenville, for appellant.

William M. Grant, Jr., and Charles E. McDonald, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent.

MOSS, Chief Justice.

This action arises out of an automobile collision which occurred on Shiloah Road, Anderson County, South Carolina, on December 19, 1970. Grady F. Keeler, the appellant herein, was driving his 1968 Ford automobile which collided with a 1958 Chevrolet automobile being driven by Troy D. Taylor, said automobile being insured under an automobile liability insurance policy issued by Allstate Insurance Company, the respondent herein. The 1958 Chevrolet automobile was purchased by Raymond Williams, a minor, but was titled and insured in the name of his father, Broughton M. Williams, with whom he resided. At the time of the collision, this automobile had been loaned by Raymond Williams to Troy D. Taylor, who was also a minor.

The appellant brought suit against Troy D. Taylor for the personal injury and property damage he sustained in the aforesaid collision. The respondent here refused to defend the action on the ground that Taylor was not a permissive user of the automobile within the terms and provisions of its policy. The case came on for trial before the Honorable Frank Eppes, without a jury, and resulted in a judgment in favor of the appellant against Taylor in the amount of $12,000. The parties to this action have stipulated that in the event the appellant is entitled to recover against the respondent, under the terms of the policy, the amount thereof would be $10,500. The remaining portion of the judgment would be the liability of Taylor.

This action came on to be heard before the Honorable James H. Price, Jr., Judge of the Greenville County Court, without a jury. Thereafter, Judge Price issued his order in favor of the respondent finding as a fact that the actual use of the automobile by Troy D. Taylor was expressly prohibited and was without the permission, either express or implied, of the named insured, Broughton M. Williams, and the policy of Allstate furnished no coverage for the personal injury and property damage sustained by the appellant. He further found that the use of the automobile by Troy D. Taylor did not serve any purpose of the named insured or his minor son, the initial permittee.

The first question for determination is whether or not the trial judge erred in concluding that the use of the insured automobile, at the time of the collision, was without the permission of the named insured.

The policy of the respondent provides that it would pay, on behalf of the insured, all damages which the insured shall be legally obligated to pay because of bodily injury sustained by any person, and injury to or destruction of property.

The following persons are insured under Section I of the policy: '(1) the named insured with respect to the owned or a nonowned automobile; (2) any resident of the named insured's household with respect to the owned automobile; (3) any other person with respect to the owned automobile, provided the actual use thereof is with the permission of the named insured. . . .'

Under Section 46--750.31(2) of the Code, the term 'insured' means the named insured and any person who uses, with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies.

The permission which puts the omnibus or extended coverage clause of the policy of liability insurance into operation may be either express or implied, but whether the permission be expressly granted or impliedly conferred, it must originate in the language or the conduct of the named insured or of some one having authority to bind him in that respect. Implied consent, as the term suggests, rests upon proof of circumstances from which an inference of actual permission or consent reasonably arises. The implication is one of fact based upon circumstantial evidence. Implied consent involves an inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or lack of objection under circumstances signifying assent. Government Employees Ins. Co. v. White, S.C., 194 S.E.2d 884.

The trial judge found as a fact that Raymond A. Williams wanted to buy a 1958 Chevrolet automobile and his mother contacted an agent of the respondent to determine if this automobile could be insured under her husband's policy. She was informed that this could be accomplished only if the automobile being acquired was titled in her husband's name. The automobile was purchased by the son and titled in his father's name and was thereafter included in the father's policy by the respondent.

On the date of the collision, Troy D. Taylor and Raymond Williams exchanged automobiles for a few hours since Raymond wanted to 'try out' Troy's automobile which was newer than his. At the time of the collision Troy was operating the Chevrolet automobile with the permission of Raymond.

The trial judge found that the personal use of the Chevrolet automobile by Raymond was unrestricted and he could drive it at any time as he deemed necessary or desirable for his personal enjoyment and for driving to and from work. Even though Raymond's personal use of the Chevrolet automobile was unrestricted, his father had warned him about allowing other persons to drive the automobile and had expressly prohibited such. He had specifically instructed Raymond, after having learned that Troy D. Taylor, on a prior occasion, had driven the automobile, that he should not let Troy drive it again.

The trial judge concluded from the evidence that the actual use of the 1958 Chevrolet being made at the time of the collision was without the permission of the named insured and that such use was contrary to a specific prohibition by him. He further concluded that the use by Taylor did not serve a purpose either of the named insured or Raymond, the initial permittee, and such was not for the benefit or advantage of either.

This action is one at law and was, by agreement of the parties, tried by the judge without a jury, and his findings of fact have the force and effect of a jury verdict upon the issues, and are conclusive upon appeal when supported by competent evidence. We have carefully examined the evidence and find that the trial judge has reached a conclusion of which the facts are susceptible. We are bound by his findings of fact. Beheler v. National Grange Mutual Ins. Co., 252 S.C. 530, 167 S.E.2d 436.

The trial judge having concluded that the use of the insured automobile by Troy D. Taylor, at the time of the collision, was without the permission of the named insured presents the same issue that was before this Court in State Farm Mut. Auto Ins. Co. v. Allstate Ins. Co., 255 S.C. 392, 179 S.E.2d 203; Dearybury v. New Hampshire Ins. Co., 255 S.C. 398, 179 S.E.2d 206; and Southern Farm Bureau Cas. Ins. Co. v. Hartford Accident & Indemnity Co., 255 S.C. 427, 179 S.E.2d 454. The rule announced in these cases is conclusive of the issue presented here.

The appellant also contends that the trial judge was in error in finding that Raymond Williams did not occupy the equivalent position of a named insured under the automobile liability insurance policy issued by the appellant.

It is the contention of the appellant that since Raymond Williams had purchased the automobile in question that he was, in fact, the owner thereof. The same contention here advanced was made in the case of State Farm Mut. Auto Ins. Co. v. Allstate Ins. Co., 255 S.C. 392, 179 S.E.2d 203. What we there said is dispositive of this question. We quote the following:

'Appellant next contends, in substance, that Ricky James' dominion over the insured automobile 'was so unrestricted that for purposes of coverage under the omnibus clause he should be considered an owner of the car.' This claim is buttressed by the fact that Ricky made an unspecified number of payments on the car during the summer following its purchase, thereby gaining a supposed equitable interest in its ownership. But the fact is that omnibus coverage in this case depends upon the consent, not of the owner but of the named insured, Mr. James. The authorities cited by appellant do not say otherwise, nor has our own research revealed support for appellant's proposition.'

The judgment of the lower court is,

Affirmed.

BRAILSFORD and LITTLEJOHN, JJ., concur.

LEWIS and BUSSEY, JJ., dissent.

BRAILSFORD, Justice (concurring in result):

I recognize that the omnibus-insured terminology construed in State Farm, 255 S.C. 392, 179 S.E.2d 203, and Dearybury, 255 S.C. 398, 179 S.E.2d 206, was significantly different from that involved here, and agree that those decisions are not controlling. Nevertheless, I concur in the result of the opinion of the Chief Justice on the basis of the findings of fact of the trial judge stated therein.

LEWIS, Justice (dissenting):

I find myself in disagreement with the majority opinion and, therefore, respectifully dissent.

The issues require a determination of respondent's liability under a liability insurance policy, issued by it to Broughton M. Williams, covering a 1958 Chevrolet automobile.

The insured automobile was actually owned by the insured's minor son, Raymond, but was titled and insured in the father's name because of the son's minority. On December 19, 1970, the automobile, while being driven by one Troy Taylor with the permission of Raymond, was involved in a collision with an automobile owned and driven by plaintiff-appellant. Subsequently, appellant obtained judgment for his damages against Troy Taylor and then brought this action against respondent to collect such judgment, upon the theory that the operation of the...