Manock v. Donley

• Decision Date: 07 January 1966
• Docket Number: No. 8203,8203
• Court: North Dakota Supreme Court
• Parties: Agnes MANOCK and Louise Manock, by her Guardian ad Litem, Agnes Manock, Plaintiffs and Respondents, v. Dennis DONLEY, by his Guardian ad Litem, Ralph Donley, Defendant, and Aetna Casualty & Surety Company, Garnishee and Appellant.

Page 391

139 N.W.2d 391

Agnes MANOCK and Louise Manock, by her Guardian ad Litem Agnes Manock, Plaintiffs and Respondents, v. Dennis DONLEY, by his Guardian ad Litem, Ralph Donley Defendant and Aetna Casualty & Surety Company, Garnishee and Appellant.

No. 8203.

Supreme Court of North Dakota.

Jan. 7, 1966.

Syllabus by the Court

1. Where a policy of automobile insurance provides that any relative of insured who uses a non-owned automobile shall be covered by its provisions only if the use of such automobile is with the permission of the owner, a son of the insured who uses such non-owned vehicle without the permission of the owner is not covered by such policy.

2. The evidence in the case is examined and it is held, for reasons stated in the opinion, that the use of a non-owned automobile by the son of the insured was not with permission of the owner of such vehicle and was therefore not within the provisions of the policy covering the use of a non-owned automobile.

Lewis & Bullis, Wahpeton, for plaintiffs and respondents.

Nilles, Oehlert & Nilles, Fargo, for garnishee and appellant.

STRUTZ, Judge.

The defendant is the minor son of Ralph Donley. At the time of the accident involved in this action, Ralph Donley owned a 1953 Dodge automobile which was insured with the appellant company under a policy which provided liability coverage for a nonowened vehicle driven by any relative of the insured 'provided the actual use thereof is with the permission of the owner.'

On the evening in question, while the above policy was in full force and effect, the defendant was on a party with certain other young people. One of the group, Robert Ehlert, was driving his father's 1954 Chevrolet with his father's permission. This vehicle was uninsured. The father of Robert Ehlert had specifically advised his son never to permit anyone else to drive the car.

During the evening, the party ended up at the defendant's parental home, but the parents were not present. The young people drank beer and otherwise spent the evening. After a while, Robert Ehlert fell asleep on the davenport. The testimony is conflicting as to whether he became intoxicated or whether he was just sleeping. At any rate, at about 3:30 a. m., the defendant wanted to take the plaintiff home, a distance of about three miles. He testified that he asked Robert Ehlert if he could take his father's car but that Robert was asleep and did not hear him. It is undisputed that the defendant did not receive affirmative consent to use the car. He discovered, however, that he did not need the key to drive the Ehlert car and that it could be started without the use of a key. He started to take the plaintiff home, but after driving a few blocks he hit a parked car, causing bodily injury to the plaintiff.

The issue of liability of the defendant and the issue of whether the defendant, at the time of the accident, was operating the Ehlert vehicle with permission of the owner, so as to bring such operation within the provision of the insurance policy issued by the garnishee to the father of the defendant for coverage of a non-owned vehicle driven by a relative, were submitted to a jury. The jury found for the plaintiff on both of these issues, and the garnishee appeals to this court from the judgment entered on the verdict of the jury.

The sole question for us to determine on this...