(dissenting in part).
I agree with the majority that the fact findings of the trial court have record support and must be accepted. I disagree with the majority conclusion that those facts establish liability of State Farm under its policy.
The State Farm “non-owned automobiles” provision covers the use of the Shaw automobile by Marie as the wife of the named insured, William Holloway, living in his household “provided such use, operation, occupancy or custody is with the permission of the owner or person in lawful possession of such automobile.”
At the time Marie received possession of the Shaw automobile and at the time of the accident, she did not have a regular Oklahoma driver’s license but had a beginner’s permit which required a licensed driver to be with her in any car which she was operating. At the time of the accident, Marie was driving alone.
The pertinent findings of the trial court are:
(1) “Marie was told that she couldn’t use it [the- Shaw automobile] unless she had a licensed driver in the car with her, and was not driving with the permission of the named insured.”
(2) “Marie Holloway was not‘using the Ford automobile of her parents, Robert and Evelyn Shaw, at the time of the accident, while a resident of their household and with their permission.”
(3) “Marie Holloway was using the Ford automobile of her parents at the time of the accident while it was in her lawful possession.”
My associates recognize that Marie had only a qualified permission to use the Shaw car and that her use violated that permission. They reason that, because Marie had possession and could have given another unqualified permission, she could give herself unqualified permission. To me this is a non sequitur which is sustained by neither legal precedent nor logical analysis. The fact that Marie, as the one in possession, could give to another unqualified permission is immaterial. It simply did not happen. We are concerned with the use of the car by Marie, not by a third person.
My associates compare the language of the “persons insured” clause of the Associated policy with the “non-owned automobiles” clause of the State Farm policy. The clauses are distinguishable in the purposes they are intended to serve. Be that as it may, each clause requires permission. In the Associated policy that permission comes from the owner. In the State Farm policy it comes from the owner or person in possession. The majority opinion reads into the State Farm policy a non-existent ambiguity. It does so by the boot-strap reasoning that the possessory right of Marie extinguishes the limitation on her use.
A person who has a qualified right may not, unilaterally, remove the qualification. Otherwise, there would be no point in the imposition of the qualification. In the case at bar, the permission was qualified and the use was contrary to the qualification. The effect of the majority opinion is to delete from the State Farm policy the requirement that a non-owned automobile is covered only if its use is with permission.
The arguments of the Shoops that the insurance carriers are barred by their conduct from disclaiming liability have *1286no merit. I would reverse the judgment in No. 233-68. So far as No. 234-68 is concerned, the findings of the trial court sustain the judgment in favor of Associated.