The application for rehearing herein is addressed solely to alleged error on our part in rejecting plaintiff's contention that the insurer defendant is responsible to him for the damages sued for under the omnibus clause of the insurance policy carried by defendant Gans. In other respects, the former judgment of this court, the findings of fact and conclusions of law upon which it is based, are acquiesced in by plaintiff. We found and held that Harvey Hall, the chauffeur of Gans, at the time of the accident with Gans' car, had deviated from his master's employ and was on a private mission of his own. Therefore, it followed that Gans could not legally be held responsible for the results of the accident under the doctrine of respondeat superior. The question propounded by plaintiff's remaining contention is whether the car, at the time of the accident, was being used with the "permission" of Gans, the assured. The facts pertinent to this issue and the reasons forming the basis of our rejection of this contention are elaborately set out in our original opinion. After further studious consideration of the case and copious briefs of both sides, we are unconvinced of error in our prior conclusions as regards this question. It is true that Hall was not unlawfully in possession of the car when the collision occurred. It had been intrusted to his keeping for a restricted purpose. He was not warranted in using it otherwise. We do not think responsibility vel non in cases of this character is to be determined exclusively from the nature of the incipiency of the original possession.
There is definite lack of uniformity in the jurisprudence of the various states wherein this question has been embattled. The omnibus clause, such as we are now discussing, is but ten years old. In some states, seemingly, it has not been judicially interpreted. Due to the youth of the clause, it is not surprising that there should exist so much difference of opinion concerning its operative effect when applied to different state of facts. The majority view is to the effect that "permission means a consent to use the car at the time, place and under the circumstances of the accident." In other words, that the question does not recur upon nor is it to be always determined by the character of permission originally given. We think this the more rational interpretation of the clause. The question has not definitely been passed on by the Supreme Court of this state.
In the present case, the employer's instructions to the servant, Hall, were not susceptible of misunderstanding. These were specifically prohibitory in purpose and effect. Hall was not to use the car in any manner or to any extent for his personal and private affairs. Prohibition is the antonym of permission. To hold that the car was being operated at time of the *Page 877 accident with Gans' permission is tantamount to holding that Hall had the power to convert a prohibition into a permission. The unambiguous language of the omnibus clause is not susceptible of such a construction.
For the reasons herein assigned, the former judgment of this court is reinstated and made final.
DREW, J., dissents.