Fehl v. Aetna Casualty & Surety Co., 260 N.C. 440 (1963)

Nov. 6, 1963 · Supreme Court of North Carolina

260 N.C. 440

ELISABETH ANN JACOBS FEHL v. AETNA CASUALTY & SURETY COMPANY.

(Filed 6 November 1963.)

Insurance § 57—

Where the evidence discloses that a prospective purchaser was permitted to drive the dealer’s vehicle seven miles to the purchaser’s home to show it to his wife and was to return the vehicle within two and one-half hours, hut that he actually drove 70 miles to .another municipality and had an accident resulting in plaintiff’s injury more than 20 hours after he should have returned the vehicle, held, the evidence does not bring the claim within the coverage of the dealer’s liability policy.

Appeal by plaintiff from MacRae, S.J.,-January, 1963 Session, Waice Superior Court.

The plaintiff instituted this civil action to recover the sum of $3,-300.00, the amount fixed by judgment to be due for .the bodily injuries she sustained .in .an accident as .a result of the negligent operation of a 1959 Buiok automobile owned by Smith Buick Company, Inc., Fu-quay Springs, North Carolina, and operated by Cieno Harris, of Apex, North Carolina. The accident occurred on September 10, 1961.

At .the time .of the accident itlh'e Smith Buick Company, Inc., a dealer in second-hand automobiles, 'held a .policy of liability insurance issued to it by .the defendant in conformity with the Motor Vehicle Safety and Responsibility Act of 1953, as amended. The Omnibus Clause of the policy provided coverage for the insured’s automobiles when operated with its permission, express or implied.

The evidence disclosed that about 3:00 or 3:30 pan., on September 9,1961, Cieno Harris sought to purchase from the insured a 1959 used Buick. He and a salesman of the insured tried out the Buick on the road, returned to the insuredis place of business where Harris requested and was given permission to drive the vehicle to his home, approximately seven miles away, so that his wife might approve the purchase. The .insured instructed Harris to return the vehicle before six o’clock, at which time the purchase was to be completed or possession wa® to be 'surrendered to the owner. Instead of going home to show the vehicle to his wife, Harris drove to Rocky Mount, spent the night, and .at about 3:00 p.m. on September 10, Sunday, had the accident in which the plaintiff sustained injuries.

At the close of the evidence the count entered judgment of involuntary nonsuit, .from which the plaintiff appealed.

Everett, Everett & Everett, by Robinson O. Everett for plaintiff appellant.

Spears, Spears & Barnes by Marshall T. Spears for defendant ap-pellee.

PeR Curiam.

For a full analysis of the case® in which liability is upheld or denied on the ground the use of the insured vehicle' 'at the time of an accident wag with or was without the owner’s permission, see Hawley v. Ins. Co., 257 N.C. 381, 126 S.E. 2d 161. In this case, Harris had permission to drive the Buick seven miles to his home but he was instructed to> return it within two and one-half hours. Actually he drove 70 miles to Rocky Mount where he spent the night. While driving the vehicle more 'than 20 hours after’ he should 'have surrendered it, he became involved in the accident in which the plaintiff sustained her injuries. These fact® show a major — not a minor — deviation from the permitted uise. The rules to which this Court is committed (Hawley) require us to hold Harris’s use at the time of the accident was without the .permission of the owner. Consequently the defendant’s policy does not cover plaintiff’® injury. The judgment of the Superior Court of Wake County is

Affirmed.