Pharr v. Beverly

• Decision Date: 29 July 1988
• Parties: Keith PHARR and Federated Guaranty Mutual Insurance Company v. Meshelle BEVERLY and Deloris Beverly. FEDERATED GUARANTY MUTUAL INSURANCE COMPANY v. Theodore MANZIE, Meshelle Beverly, and Deloris Beverly. 86-1429, 87-1235.
• Court: Alabama Supreme Court

Page 808

530 So.2d 808

Keith PHARR and Federated Guaranty Mutual Insurance Company v. Meshelle BEVERLY and Deloris Beverly.

FEDERATED GUARANTY MUTUAL INSURANCE COMPANY v. Theodore MANZIE, Meshelle Beverly, and Deloris Beverly.

86-1429, 87-1235.

Supreme Court of Alabama.

July 29, 1988.

J. Garrison Thompson and Philip Henry Pitts of Pitts, Pitts & Thompson, Selma, for appellant Federated Guar. Mut. Ins. Co.

V. Wylynn Gilmore-Phillippi and Patricia K. Kelley, Grove Hill, for appellees.

TORBERT, Chief Justice.

On July 14, 1984, an automobile owned by Deloris Beverly and operated by her daughter, Meshelle Beverly, was traveling north on Highway 221 in Wilcox County, Alabama, when a vehicle traveling south forced the Beverly vehicle off the road. Meshelle Beverly suffered personal injuries as a result of the ensuing crash. The vehicle that ran her off the road was owned by Theodore Manzie and was operated by defendant Keith Pharr.

The Beverlys subsequently sued Manzie and Pharr, seeking damages for personal injuries to Meshelle Beverly and for property damage to the automobile of Deloris Beverly. The complaint alleged that the injuries and the property damage resulted from the negligent operation of Manzie's automobile by Pharr. Various counts of the complaint alleged negligent entrustment by Manzie and alleged theories based on an agency relationship between the two defendants.

At the time of the accident, Manzie was insured by Federated Guaranty Mutual Insurance Company (hereinafter "Federated"). The terms of his liability policy require Federated to defend any suits against an insured for bodily injuries or property damages and to pay any damages due from an insured resulting from the use of the insured vehicle. The policy defines "insured" as follows:

"[T]he unqualified word 'insured' includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the automobile, provided the actual use of the automobile is with the express permission of the named insured...." (Emphasis added).

After the Beverlys filed their complaint, Federated instituted a declaratory judgment action against Pharr and the Beverlys for a determination of its obligation to defend and insure Pharr, alleging that at the time of the accident Pharr was driving the Manzie automobile without Manzie's express permission to do so. The parties agreed to try the damages suit and the declaratory judgment action at the same time before the same jury.

At trial, at the close of the Beverlys' evidence, the trial court granted Manzie's motion for a directed verdict as to all claims against him. The court denied Federated's motion for a directed verdict on the declaratory judgment issue of permissive use. The case was submitted to the jury with verdict forms, as well as a special interrogatory relating to the permissive nature of Pharr's operation of the Manzie vehicle at the time of the accident. The jury subsequently returned its verdict on the interrogatory by affirmatively answering that Pharr was driving the Manzie vehicle with Manzie's consent and further awarded damages against Pharr and in favor of Meshelle Beverly for $25,000.00 and in favor of Deloris Beverly for $5,000.00. Pharr and Federated appeal. ¹

I

Federated first argues that the trial court erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and for new trial on the declaratory judgment issue of permissive use. Federated maintains that there is no evidence that Manzie gave express permission to Pharr to drive Manzie's automobile on the date of the accident.

In Alabama Farm Bureau Mutual Casualty Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So.2d 664 (1970), this Court stated, with respect to the permission clause of the policy at issue in that case:

"It will be noted that in the 'omnibus clause' quoted above, in provision (3), liability coverage is extended to any other person using the automobile '... with the express permission of the named insured.'

"This provision is different from the omnibus clause in many policies which do not require the 'express permission' of the named insured but require merely the 'permission' of the named insured. The decision in the instant case turns on the construction and application of the words 'express permission.' Where only 'permission' is required, the courts have held that the permission is sufficient to provide coverage if the facts justify a finding that either express or implied permission had been granted by the named insured or other person authorized to grant permission. See 5 A.L.R.2d 601. One court has said:

" 'Under the Virginia statute, the permission of an assured in a liability insurance policy, to bind the insurance company, may be either express or implied. To be express, it must be of an affirmative character, directly and distinctly stated, clear and outspoken, and not merely implied or left to inference. On the other hand, the correlative word, "implied," as defined in Webster's New International Dictionary (2d Ed.), means "inferential or tacitly conceded." It 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. An implied permission is not, therefore, confined alone to affirmative action.' Hinton v. Indemnity Ins. Co., 175 Va. 205, 213, 214, 8 S.E.2d 279, 283 [ (1940) ].

"In Webster's Third New International Dictionary, Copyright 1961, page 803, the adjective, 'express,' is defined as follows:

" '1a: directly and distinctly stated or expressed rather than implied or left to inference: not dubious, or ambiguous: DEFINITE, CLEAR, EXPLICIT, UNMISTAKABLE.'

"Another court has said:

" 'Express permission would necessarily include prior knowledge of the intended use and an affirmative and active consent to it....' Bradford v. Sargent, 135 Cal.App. 324, 27 P.2d 93, 96 [ (1933) ]."

286 Ala. at 418, 240 So.2d at 667-68. See also, Alabama Farm Bureau Mutual Cas. Ins. Co. v. Hudson, 432 So.2d 1208 (Ala.1983); Crawley v. Alabama Farm Bureau Mutual Cas. Ins. Co., 295 Ala. 226, 326 So.2d 718 (1976); Alabama Farm Bureau Mutual Cas. Ins. Co. v. Mattison, 286 Ala. 541, 243 So.2d 490 (1971).

In the present case, the evidence was in dispute as to whether Pharr was driving Manzie's automobile with Manzie's express consent. Robert Woods testified that, on the evening of the accident, he saw Pharr and Manzie outside a local store and heard Pharr ask Manzie for Manzie's car keys. Woods further testified that Manzie threw his car keys to Pharr and "told him to go ahead, man." Woods admitted on cross-examination that he left the store before Pharr left, and that he never actually saw Pharr drive away in Manzie's car. He did state that he saw Pharr driving Manzie's car on the day of the accident.

The testimony of Roy Rogers, a defense witness, tended to contradict that of Woods. Rogers testified that on the day of the accident he rode to "Powell's Grocery" with Manzie in Manzie's car. He stated that he saw Pharr at the store but never heard any conversation between Manzie and Pharr and never saw Manzie throw his car keys to Pharr. Rogers further testified that he and Manzie went into the store and that when they came out, Manzie's car was gone and "somebody told us Keith [Pharr] got his [Manzie's] car and gone."

The Beverlys called several other witnesses, whose testimony adds credibility to Woods's testimony that Manzie gave Pharr permission to drive his car. Linda Hartley testified that Keith Pharr is her brother and that Pharr and Manzie had been friends all their school life. Martha Mack also testified that Manzie and Pharr had been good friends all through high school. Theresa Pharr testified that Keith Pharr is her uncle and that on the evening after the accident, Manzie drove Keith Pharr to the local bus station.

We conclude that there was sufficient evidence that Pharr was using Manzie's car with Manzie's express permission to warrant submitting the issue to the jury. Woods's testimony was positive and direct that Manzie gave express permission to Pharr to use his car. Although, standing alone, the other witnesses' testimony would be insufficient to establish the existence of express permission, that testimony does lend credibility to Woods' testimony, in that it showed that Manzie and Pharr were not mere strangers but were, in fact, good friends. We, therefore, hold that the trial...