dissenting: I respectfully dissent. The motion for summary judgment should not have been entered in this case because an unresolved issue of a material fact is present in the record.
*163A motion for summary judgment may be granted only if the record before the court conclusively shows there remains no genuine issue of a material fact unresolved. K.S.A. 60-256(c); Motors Insurance Corporation v. Richardson, 220 Kan. 288, 552 P.2d 894 (1976); Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 538 P.2d 713 (1975); Kern v. Miller, 216 Kan. 724, 533 P.2d 1244 (1975); State Bank of Burden v. Augusta State Bank, 207 Kan. 116, 483 P.2d 1068 (1971); Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770 (1969); Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964 (1965).
“A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts.
“A mere surmise or belief, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court . . . .’’’Brick v. City of Wichita, 195 Kan. at 211.
The material facts pertinent to the case are found in the deposition of Robert Hester, the original owner of the pickup. A portion of that deposition is set forth below:
“Q. Did you consider the sale (of the pickup) already made even though he owed you the fifty dollars?
A. Yes, sir.
Q. You considered the truck to be his?
A. Yes.
Q. Once he paid you the hundred dollars, is that right?
A. Yes, sir; yes, sir.
Q. And it was his truck after he paid you the hundred dollars to do with as he pleased, isn’t that correct?
A. If he wanted to, I guess.
Q. Why did you tell him that he could only drive the truck home and then come back the next day?
A. Because it hadn’t been notarized.
Q. Because of the registration hadn’t been notarized?
A. Well, title or whatever you call it, yeah.
Q. Do you recall ever telling him that he was the only one that could drive the truck?
A. No, I can’t recall that.
Q. You never told him that only he could drive the truck, is that correct?
A. Never did say.
Q. Pardon?
A. I couldn’t say, I can’t recall.
Q. Well do you recall ever telling him that the truck could only be driven by him?
*164A. No, sir, I can’t.
Q. Did you tell him the truck could only be driven by him?
A. Sir?
Q. Did you tell him that the truck could only be driven by him?
A. No, sir.
Q. Did you consider the truck to be his since he gave you a hundred dollars?
A. No, sir. I considered the truck to be his, not the stuff that was on it.
Q. You considered the truck to be his but you wanted to get back your plates?
A. Yes, sir.
Q. Is that right?
A. And that title.
Q. You wanted to get the title straightened out?
A. Yes, sir.
Q. So, you considered that the truck was his, so, you weren’t worried about the truck, what you were worried about was the license plate and get the title straightened out, is that right?
A. More or less, yeah.
Q. Okay, and so far as you were concerned with the truck he could do with as he pleased, is that correct?
A. Yes, sir.
Q. Can you tell me generally what the words you used were?
A. Well, he wanted — the car wouldn’t start. He wanted to take it home, so, he asked me if it would be okay to drive the truck home. I said, yes, drive the truck home and bring it back so we could have it notarized and take the tags off.
Q. So, you said, ‘drive it home and bring it back so I can get the tags — registration notarized.’
A. Yes.
Q. Did you want to get the tags back on the truck?
A. Yes, sir.
Q. If they didn’t come back the next day with the truck but drove his car and just dropped off the license tags, would that be all right with you?
A. No, sir.
Q. You wanted him to drive the truck back with the license tag?
A. No, sir, I wanted to see — I wanted to see the tag — title, make sure it was notarized.
Q. So, if he drove back in his car the next day with the tag, license tag and the notarizing of the registration, that would have, been all right?
A. It was a pickup - yeah.
Q. He didn’t have to drive the pickup back to you?
A. No, sir.”
In a sworn statement made October 22, 1974, Robert Hester *165stated: “[Bayless] came to my home the following day and purchased it. I endorsed the back of the title and Mr. Bayless left with the vehicle. ...”
The unresolved issue of fact is whether Hester expressly or impliedly gave Bayless permission to let a second permittee drive the pickup. It is noted that:
“[I]n every case where the first permittee permits another to use the insured automobile, a factual determination must be made whether the initial grant of permission was broad enough to include an implied grant to the permittee of authority to give another use of the automobile and thus render the latter an additional insured under the omnibus clause.” Krebsbach v. Miller, 22 Wis. 2d 171, 175-76, 125 N.W.2d 408 (1963). See 7 Am. Jur. 2d, Automobile Insurance § 116, p. 431.
Hester’s testimony was later weakened on cross-examination and controverted in an affidavit from Larry D. King; however, this bears only on the weight of evidence. This court has held the existence of material facts and all reasonable inferences in support thereof should be resolved strictly against the movant in a motion for summary judgment. Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838 (1967); Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967); Jamagin v. Ditus, 198 Kan. 413, 424 P.2d 265 (1967).
The general rule forbidding coverage of a second permittee under the omnibus clause where the named insured has expressly prohibited the first permittee from allowing others to use the car, Gangel v. Benson, 215 Kan. 118, 523 P.2d 330 (1974), was noted in the majority opinion. In addition, the majority has recognized one of the exceptions to that rule: that implied consent from the named insured may be found where the first permittee has the equivalent of an equitable title and has unfettered control over the use of the car outside the surveillance of the named insured. Gangel v. Benson, 215 Kan. 118; United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978); Jones v. Smith, 1 Kan. App. 2d 331, 564 P.2d 574 (1977). It is precisely this exception that is applicable to the instant case.
Here, the evidence is uncontroverfed that Hester sold the pickup to Bayless but the sale was incomplete because the assignment on the back of the bill of sale, though executed and delivered, was not notarized. Thus, Hester remained the holder of the legal title to the pickup, K.S.A. 1974 Supp. 8-135(c)(6), and it *166was covered by his insurance policy. Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 (1967). The rest of the facts are disputed but viewing the evidence in the most favorable light to the appellant, Bayless was owner of the equitable title to the pickup with possession under color of title, and had the unrestricted authority of such an owner.
Turning to the omnibus clause of the insurance policy on the pickup, I will determine if the unresolved fact issue is material. The policy insured the named insured, Hester, and “any other person while using such automobile and any other person or organization legally responsible for its use, provided the actual use of such automobile is by the named or with his permission. . . .”
In addition to the policy provisions, applicable statutory law must be read into the policy. Canal Insurance Co. v. Sinclair, 208 Kan. 753, Syl. ¶ 3, 494 P.2d 1197 (1972).
K.S.A. 1974 Supp. 40-3107 provides:
“Every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this state shall:
(b) Insure the person named therein and any other person, as insured, using any such vehicle with the expressed or implied consent of such named insured, against loss . . . .”
When all of the testimony and inferences are resolved against appellee for the purposes of testing the motion for summary judgment, I find that Bay less is an equitable owner of the pickup who has permission from Hester to use the vehicle. The only restriction placed on Bayless was for him to return the owner’s tags the next day and notarize the signature on the bill of sale. This presents a clear cut issue of a material fact about which reasonable persons could disagree, making the granting of summary judgment premature. I recommend the case be reversed and remanded to the trial court for further findings.
Schroeder, C. J., joins in the foregoing dissenting opinion.