(dissenting).
I am compelled to dissent from the majority of the court. I am of opinion that a verdict for defendant should have been directed in the District Court.
The case turns on the testimony of Paul T. Davis, whose son was driving the car at the time of the accident involved. There was, as the court’s opinion notes, a conflict between the testimony of Paul Davis and that of Clyde R. Royals, Jr., the manager of Royals’ Motor Company, who had negotiated and executed the agreement under which Paul Davis was employed by the Motor Company. This conflict related to the conditions under which Davis was allowed the use of the company car. I recognize the principle that on a motion for a directed verdict the evidence must be taken in the light most favorable to the party against whom the motion is directed. But while agreeing with this principle as a matter of law, I am of opinion that when we apply it here there is still no justification for this verdict.
*112The material part of the contract between the Motor Company and Paul Davis, including that part relating to the furnishing of a car to Davis, has been quoted in the majority opinion. When testifying as a witness for the plaintiff in the trial court Paul Davis produced certain papers which he said were notes which he had made during his negotiations with Mr. Royals over the contract of employment. This question and answer follow:
“Q. And what was the final agreement according to your notes there? A. One hundred fifteen dollars a week until February 1st, 3 per cent on labor sales up to $4,-000.00; 5 per cent on labor sales over $4,000.00; and transportation furnished to February 1st, 19515; at this time salary to go to $125 a week and commission as is.”
Although Davis’ own notes and the contract which he signed designate the use of the company car as being for “transportation”, he now claims that he was granted unlimited use of the car. A basis for this contention can be found only in certain leading questions propounded by counsel for appellee and the answers thereto; for example:
“Q. Mr. Davis I ask you, sir, was there at any time, either from Mr. Royals, Jr. or Mr. Royals, Sr. or anyone else in the Royals organization, a restriction placed on your use of the vehicle that they gave you to drive? A. None whatever.”
And again:
“Q. During the course of your employment over there, from, the time you went to work until the time the accident took place, Mr. Davis, did you use the car that you were driving for your personal business as well as for the company’s business? A. Yes, I did.”
It will be noted that the last quoted question and answer (one of a number of •similar ones) are directed to the use which Davis made of the car after he got it and not to the use for which the Motor Company granted it. It is a striking fact that nowhere in his testimony does Davis say that the Company allowed him the use of the car intending it to be for his personal and family use. He tells what use he made of the car but is unwilling to say that the Company agreed to such use.
It is admitted that in the negotiations between Mr. Royals and Davis concerning the latter’s employment, Mr. Royals was reluctant to give Davis the use of a company car for any purpose, because it was against the policy of the company. However upon Davis’ representation that the only car he owned was a very old one the use of which was required by his wife for various errands and that he had no other means of transportation, Mr. Royals agreed to let him have a car for a limited period of five months, after which Davis was to furnish his own transportation. I quote again from Davis’ testimony:
“And at that time I wasn’t able to buy a car. * * * He (Royals) says: ‘Well with the money I think you are going to make for the service department we’ll help you buy a car in February and you can furnish your own transportation but I’ll furnish you a car until that time.’ ”
Indeed, he says that use of the car for purposes other than transportation to and from work was not even discussed with his employer, as witness the following:
“Q. At any time during your conversation with Mr. Royals, Jr. did he make it clear to you in any way or imply in any way that your use of the car was to be limited to your driving it from the shop out to your house at night and then bring it back in the morning. A. No, sir. It was never discussed and of course if it had been limited to that extent I would have declined his offer.”
In other words, Mr. Davis, having agreed with his employer that a car should be furnished him for “transportation”, proceeded to interpret that term as giving him unlimited use of the car, without even discussing the matter further.
*113But even if we assume that the employer had given Davis permission to use the car for what he calls his “personal business” or that in the absence of such permission the car was being so used with the knowledge of the employer—as to which knowledge there is no proof—• there would still be no basis for holding that the employer had consented to an unrestricted use of the car by members of Davis’ family. The testimony of Davis himself shows that there was no general use of the car by his family and indicates that he was conscious of the fact that his employer had not given permission for such use.
Questioned about use of the car by members of his family Mr. Davis stated that “(it) was unusual circumstances for me to let a member of the family use the car.” He further testified that he had allowed his wife to use the company car on one occasion; and had allowed his younger son to drive it two, or possibly three, times while on week-end passes from military camp. Although the older son, Donald, had been continuously at home for ten or eleven days preceding the accident he had, during this period, used the family car whenever he had occasion to use an automobile, and had never driven the company car until the night of the accident. Furthermore, Mr. Davis admitted that when Donald, on the night of the accident, asked for permission to use the company car, “I told him no at first, that I thought he better not use the company car, and that he had better take the Plymouth out.” And that when Donald “(t)old me that the radiator on the Plymouth was overheating and that it wouldn’t hurt to take the Hudson or company car, I then gave in and allowed him to take the car.” Asked if anyone connected with Royals Motor Company knew that he had allowed members of his family to drive the company car, Mr. Davis replied that so far as he knew they did not know of it and “I didn’t tell them”.
Out of all of this, the majority of the court reaches the opinion that there was sufficient evidence to justify the conclusion that the Royals Motor Company gave its implied permission for the car to be used by Mr. Davis’ sons to ride about the country at two o’clock in the morning transporting a group of strangers from Hampton to Williamsburg—a conclusion I am unable to accept.
The court, I think, unduly emphasizes the question of the extent of the permissive use given by Mr. Davis to his sons when they took the car out on the night of the accident. The permissive use covered by the insurance policy is a use with the permission of the named insured, which was Royals’ Motor Service Company; not permission given by someone to whom the named insured had entrusted the car. If the named insured had not given its permission for use of the car by Davis’ sons (there was certainly no express permission and I think none can be implied) then the appellant cannot be affected by any permission given them by Davis.
Under the rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, this case is governed by the law as declared by the Virginia courts, which interpret permissive use of an automobile more strictly than is done in many other jurisdictions. In Sordelett v. Mercer, 185 Va. 823, 835, 40 S.E.2d 289, 294, the court says:
“(t)he express or implied permission referred to in the statute means the express or implied permission to use or operate the motor vehicle either in the business of the owner or for any other purpose for which express permission was given or as to which it may be implied that permission was given. Permission to do a specific thing is not permission to do all things.”
It is to be borne in mind that Davis testified that he did not even discuss with his employer whether his use of the car was to be limited to transporting him to and from work and, therefore, that he evidently had no express permission beyond that, and that the use of the car on his personal business derived only from his assumption that he had a right to so use it. Even if his assumption were *114correct, or even if we were to assume (which clearly is not proven) that his employer had given him express permission to use the car in connection with his personal errands around town, it is not seen how this constituted implied permission to him to turn the car over to his sons to go joy riding.