dissenting: I cannot agree with the majority opinion which invests this court with authority not only to delete provisions in a contract of insurance but also to determine the ultimate facts in the lawsuit.
The “named insured” in the present policy was Jack W. Seamens. With respect to liability coverage he alone was invested with authority under the omnibus provisions of the policy to grant or withhold permission to operate the automobile. Other persons insured, such as residents of the household of the named insured, are not invested with such authority to extend coverage to strangers. The named insured, Jack W. Seamens, testified: “. . . I told him that he could not loan it [the car] to anybody or it would be brought home.” He further testified: “No one had permission to drive this car and no one would have ever had permission to drive *776this car. I know what the liability is against a person that doesn’t have permission. If I ever found anybody driving that car it would have been brought home, period. I definitely gave no one permission to drive this car except my son, or except my family and I have three other children.”
With the foregoing evidence it becomes very difficult to imply permission from Jack W. Seamens to Harrison to operate the car. The effect of this court’s decision is to delete the requirement in the contract of insurance that permission to operate be granted or implied by words or acts of the named insured. Under the court’s present opinion any member of the named insured’s household now has authority to extend permission to operate the car which will be binding upon the insurer.
I question the wisdom of rewriting such a policy contract in the present case. The statements as to liberal construction based upon public policy seem entirely misplaced. Harrison was an uninsured motorist and liability for his negligence was covered by the policy issued by Farm Bureau Insurance Company on the vehicle in which Deborah Reif was riding. This is a contest between insurance companies as to who insured the loss. What question of public policy should be recognized in favor of one as against the other company?
In Burks v. Whalen, 208 Kan. 222, 491 P. 2d 940, the question of implied permission in the omnibus provision of an insurance policy was considered and this court said:
“. . . It seems to us that implied permission is a question of ultimate fact. Like negligence, it becomes a question of law only when reasonable minds could not reach different conclusions. We think this is the sense in which trial court found that ‘as a matter of law’ the facts and circumstances did not constitute implied permission — no implication of permission was compelled by the evidence. Our chore, then, is to determine whether there was substantial evidence which, given the benefit of all reasonable inferences, would support the trial court’s finding of ‘no implied permission.’ ” (p. 224.)
After examining the record this court went on to say:
“This evidence, in our view, amply justifies the finding of the trial court that the pattern of prior conduct did not show implied consent. Certainly we cannot say it compelled the contrary finding.” (p. 225.)
From the authority cited there can be no doubt in the present case that implied permission was a question of fact for the trier of the facts. This court is not invested with that authority.
The trial court did not determine whether the named insured *777gave Harrison implied permission to drive the car and neither should this court on appeal do so.
The trial court erroneously based its decision not on the insurance contract provisions but on who had paid for the car and the insurance contract. The basis, if any, for the trial court’s decision was expressed in its memorandum decision as follows:
“This Court does not believe a giant corporate insurance company can or should be permitted to issue a policy covering a certain vehicle, collect premium dollars on such coverage for the vehicle, then be permitted to deny coverage when such vehicle is involved in an accident, such denial being based on the fact that the title owner did not give permission for the use of the car.”
Such reasoning, if sound, would be equally applicable to the company which issued the uninsured motorist coverage on the Reif vehicle. I would reverse the decision of the trial court and remand the case to the trial court for further proceedings.
Fontron, J., joins in the foregoing dissent.