Rakestraw v. Allstate Ins. Co.

• Decision Date: 04 May 1961
• Docket Number: No. 17774,17774
• Citation: 238 S.C. 217,119 S.E.2d 746
• Court: South Carolina Supreme Court
• Parties: Raymond RAKESTRAW, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.

Page 746

119 S.E.2d 746

238 S.C. 217

Raymond RAKESTRAW, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.

No. 17774.

Supreme Court of South Carolina.

May 4, 1961.

James J. Raman, Spartanburg, for appellant.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent.

MOSS, Justice.

Raymond Rakestraw, the appellant herein, instituted this action against Allstate Insurance Company, the respondent herein, to recover certain medical expenses under the omnibus coverage provision of a policy of insurance issued by the respondent to one Ann Hauser McKinney.

The complaint alleges that the respondent issued to Ann Hauser McKinney a liability policy covering an automobile owned by her, and that the said policy provided for the payment for necessary medical expenses, to the extent of $1,000, to any person who sustains bodily injury caused by accident while occupying the automobile owned by the insured 'with permission of the owner.' The complaint further alleges that while the said policy was in full force and effect, that the appellant while occupying the insured automobile 'with the permission of the insured, Ann Hauser McKinney', sustained on April 12, 1959, bodily injury in an accident and as a result thereof incurred medical expenses in excess of $3,000. The respondent filed an answer admitting that it issued to Ann Hauser McKinney a liability policy covering an automobile owned by her, which said policy contained a provision providing for the payment of reasonable medical expenses to each person injured by accident while occupying the automobile owned by Ann Hauser McKinney 'with permission of the owner.' It was alleged, however, that the limit of liability for such medical benefits was $500. The answer denied that the appellant was included within the coverage of the policy for the reason that the appellant was not occupying the insured automobile at the time of his injury, with the permission of the insured, so as to come within the medical benefit coverage of the policy of insurance.

This case came on for trial before the Honorable Charles M. Pace, Judge of the Spartanburg County Court, and a jury. It was stipualted that the maximum possible recovery by the appellant under the terms of the insurance policy was the sum of $500. Counsel for the respondent produced a copy of the insurance policy in question and agreed that such could be used in lieu of the original. It was distinctly stated by counsel for the respondent that he was not introducing the policy of insurance into evidence but that he had no objection to counsel for the appellant introducing such. At the conclusion of the testimony in behalf of the appellant, the respondent moved for a nonsuit on the grounds that the appellant had not proved the insurance contract, nor had he proved that he was occupying the insured automobile with the permission of the named insured. The trial Judge granted the nonsuit on the grounds (1) that the appellant had failed to prove that he came within the terms of the coverage provided in the contract of insurance between the respondent and Ann Hauser McKinney, for the reason that he had not introduced the policy of insurance in evidence, and (2) that the appellant failed to prove that he was occupying the insured automobile at the time he sustained bodily injury in the operation thereof, with the permission of the insured. The trial Judge held that at the time of the appellant's injury, he was using the insured automobile for his own personal use and purposes and not for the purpose for which the automobile had been entrusted to him. After the trial Judge had indicated that he was going to grant a nonsuit, the attorney for the appellant moved to reopen the case and to allow him to introduce into evidence the policy of insurance in question. This motion was denied. In due time the appellant moved for a new trial and such was refused. The case is before this Court on exceptions to the rulings of the trial Judge.

The appellant alleges that the trial Judge committed error in refusing to reopen the case and permit him to introduce the policy of insurance in question. When the trial Judge indicated that he was going to grant a nonsuit, counsel for the appellant said, 'We move to reopen and introduce the stipulated policy in evidence'; and after further discussion, counsel for the appellant stated, 'The language of it is set forth in the pleadings.' It thus appears that counsel for the appellant did not rely, for his failure to introduce the policy in question, upon accident, inadvertence, mistake or misapprehension as to the necessity for offering the policy. We point out again that counsel for the respondent had specifically agreed that the appellant could offer a copy of the insurance policy in lieu of the original. We have held that it is discretionary with the trial Judge, after the plaintiff has closed his case, to permit him to reopen the case and allow the introduction of additional evidence, after a motion for a nonsuit is made. Couch v. Charlotte, Columbia & Augusta R. R. Co., 22 S.C. 557; Davis v. Collins, 69 S.C. 460, 48 S.E. 469; Chapman v. Associated Transport, Inc., 218 S.C. 554, 63 S.E.2d 465; Seay et al., v. Southern Ry. Co. et al., 208 S.C. 171, 37 S.E.2d 535. Since counsel for the appellant did not plead oversight, surprise, mistake or inadvertence, in the absence of which, and under all the circumstances here, we find no abuse of discretion on the part of the trial Judge in refusing to permit the appellant to reopen his case and offer the policy of insurance as additional evidence.

Even though the terms of the policy were not set out in the pleadings in haec verba, it is readily apparent from the pleadings and from the briefs that the insurance policy contained a provision which provided for the payment of medical expenses to any person sustaining bodily injury while occupying or using the insured automobile with the permission of the named insured. The appellant excepts to the holding of the trial Judge that he had failed to prove that he was occupying the insured automobile at the time he sustained bodily injury in the operation thereof, with the permission of the insured.

The permission which puts the omnibus or extended coverage clause of the policy of 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 her in that respect. Hooper v. Maryland Casualty Co., 233 N.C. 154, 63 S.E.2d 128. Fox v. Employer's Liability Assurance Corporation, Limited, of London, England, 243 App.Div. 325, 276 N.Y.S. 917, affirmed in 267 N.Y. 609, 196 N.E. 604; Hunter v. Western & Southern Indemnity Co., 19 Tenn.App. 589, 92 S.W.2d 878; Locke v. General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland, 227 Wis. 489, 279 N.W. 55; Brochu v. Taylor, 223 Wis. 90, 269 N.W. 711.

In the case of United States F. & G. Co. v. Mann, 4 Cir., 73 F.2d 465, 467, it was said 'The law applicable to the omnibus coverage clause is clear that it creates liability insurance not only for the benefit of the name assured, but also for the benefit of those who come within the clause and meet its requirements. The one essential requirement upon which the decision must turn in this case is that a person other than the named assured, in order to enjoy the protection provided by the policy, must show that his use of the automobile is with the permission of the named assured. * * *'

It is well settled that the burden of proof was upon the appellant to show that permission actually existed under the facts and circumstances of the case. United States F. & G. Co. v. Mann, supra; Fredericksen v. Employers' Liability Assurance Corporation, 9 Cir., 26 F.2d 76; Union Indemnity Co. v. Small, 154 Va. 458, 153 S.E. 685; 7 Appleman, Ins. Law and Practice, Section 4371, at page 185; 5 A.L.R.2d, at page 666. The burden of proving coverage under the omnibus clause of an insurance policy is upon the person seeking coverage. Hartford Accident & Indemnity Co. v. Shaw, 8 Cir., 273 F.2d 133. Hence, in order for the appellant to become an additional insured under the policy issued by the respondent to Ann Hauser McKinney, it was necessary for the appellant to show that permission actually existed for his operation of the insured automobile at the time he received bodily injury. If he did not receive such permission from the insured or from some one having authority to bind her in that respect, he cannot recover in this action.

The evidence is undisputed that Ann Hauser McKinney, who owned the automobile which was being operated by the appellant at the time of his injury, had delivered it to Paul M. McKinney, the operator of a filling station in the City of Spartanburg, and such automobile was left with him solely for the purpose of sale. The appellant obtained the car from Paul M. McKinney in order to paint same. He says that when he picked up the car the 'For Sale' sign on the car was removed and he was given the key to the car. The appellant testified that he did not know who owned the automobile nor did he know the name of the person who delivered it to him. There is a dispute in the testimony as to when the car was delivered to the appellant for painting and when it was to be returned. It also appears from the testimony that the appellant was operating a small garage on Union Street in Spartanburg and the automobile was taken to such garage. He testified that he removed the insured automobile from the garage on Union Street to his home on Saturday, April 11, 1959. At such time he had not completed the painting of the automobile. He also testified that on Sunday, April 12, 1959, he was taking his wife to her mother's home and was going down to a Mr. Johnson's house to get in his garage to work on the car. It was while on...