concurring specially.
I feel that some additional statement of facts is necessary in order to properly understand the results reached and how the results are reached. The present action is against an alleged insurance carrier and upon a judgment obtained against one, Gray, in a prior tort action. This prior tort action was brought against Gray alleging negligent operation of an automobile. Bill Jones Dodge City, Inc., was later added as a party-defendant and a recovery against it sought on the basis of negligent entrustment of the automobile by Jones Dodge to Gray. Gray failed to answer and became in default. Jones Dodge answered, defending on the grounds that it had sold the automobile to Gray, there was no negligent entrustment, and that the sole proximate cause was negligence of one other than Jones Dodge. Upon the trial, the jury found general damages of $16,000 and punitive damages of $8,000 against Gray only.
The insurance company, refused to pay the judgment and the present action followed, seeking recovery of the $24,000 and attorney fees for bad faith in refusal to pay within 60 days after demand under Code Ann. § 56-1206.
The defenses set up by the insurer, in addition to denial of liability, were to the effect that a sale had taken place (of the automobile to Gray) and thus Gray was not a permissive user of an owned automobile as defined in the comprehensive coverage provisions of the policy; that the garage provisions of the policy as to the coverage of a permissive user qualify the permissive user definition, in that area, by excluding an automobile the "possession of which has been transferred to another by the named insured pursuant to an agreement of sale... ” The insurer also defended on the ground that the prior judgment "necessarily determined as an essential element of such judgment that Bill Jones Dodge City, Inc., had sold or surrendered the possession of the said automobile, under an agreement of sale, to the said James Bryan Gray”; and also that penalties and attorney fees were not recoverable against the insured in this action under Code Ann. § 56-1206.
By amendment, another defense was filed alleging the permission to drive the automobile was obtained by *573fraud and deceit excludable from coverage under the policy.
Both sides moved for a summary judgment and after hearing and introduction of an entire transcript in the prior action, the trial judge overruled defendant’s motion for summary judgment and partially granted plaintiffs motion by granting judgment for the $24,000 recovered in the prior action, leaving only the question of damages and attorney fees for bad faith in refusing to pay on demand to be decided by the jury.
In addition to the facts stated in the majority opinion, the testimony of Gray disclosed that he and Palmer had been drinking together for two days and nights prior to Saturday, June 17, 1970, and had not bathed or changed clothes or shaved during that time and were drinking on that day at Jones Dodge. It also appeared that after the larger check in payment of the automobile was given the manager made inquiry of an official of the bank on which the check was drawn, but the official knew nothing about Gray, except that his father was well-to-do. He was unable to verify the check or the account as the bank was closed on that day. The manager then decided to take the risk of the check being good. The only paper signed and dated January 17, 1970, was the purchase order which bore an approval of Jones Dodge. Other papers requiring Gray’s signature were signed by him on January 17,1970. These were papers relating to taxes on the automobile and an application for title to the State of South Carolina, the state in which Gray lived. It further appears, however, that these papers were filled out by a stenographer in due course of business on Tuesday, January 20, 1970. A purported bill of sale signed by Jones Dodge was also dated January 20, 1970. The reason given for handling the transaction in this manner was that no typist was present on the day the transaction took place, to wit: January 17, 1970. It further appears that the manager and others at Jones Dodge had notice of the occurrence of the wreck sometime on Monday morning, the 19th. Other testimony disclosed that'after the accident, Jones Dodge, upon investigation of the occurrence by the insurer, took two different positions on different occasions as to whether the delivery of the automobile to Gray was *574intended to be a complete sale at that time or not. At this point, we think it could be stated that the evidence sustained the concept that inasmuch as the documents could not be completed until Monday, Gray was permitted to take possession of the car upon his securing insurance on the automobile (which he advised them that he had secured by pretending to be the insurance agent, in a telephone call) with the expectation and understanding that he return on Monday to pick up the papers.
I agree with the conclusions reached by the majority in holding that the prior verdict and judgment was neither res judicata nor estoppel by judgment as between the parties to the present case, except as to the amount of such judgment, however, I do not agree with everything that was said in so deciding. In the prior suit the jury could have found that Gray was negligent while driving with the permission of Jones Dodge (coverage by the insurance) but that Jones was not guilty of negligent entrustment (Jones not liable), so the release of Jones by the jury in the prior case was not necessarily an adjudication of facts which would release the insurer. On the other hand, the jury in the prior case could have found there was a completed sale, thus releasing Jones and still holding Gray liable for damages. This type of finding would have released the insurer. The record in the prior case, not disclosing which fact or facts were found by the jury, we must hold that such facts as would have released the insurer were not of necessity so found in the verdict or necessary for the verdict to have been found, and under these circumstances we cannot say the verdict and judgment was a bar to the present action against the insurer. For these reasons I concur in the judgment reversing the trial judge’s grant of a partial summary judgment for plaintiff and the judgment affirming the denial of summary judgment for defendant relating to the effect of the prior action and the verdict and judgment thereon.
I might add further, that the majority opinion does not rule upon other alleged conténtions by the defendant insurer as to why the denial of a summary judgment to it as to the merits of the case was improper. One of these is the contention of the defendant insurer that the evidence *575demands a finding the possession and permission to use the automobile was secured by fraud from Jones Dodge, and relies upon a citation of foreign authority that such would be a proper ruling. Assuming, without deciding that such a ruling would be proper if the evidence demanded a finding that Jones Dodge was defrauded, it does not so demand in the present case. The evidence here is sufficient to authorize a finding that Jones Dodge, in the exercise of ordinary care, should and could have discovered that fraud was being perpetrated prior to the surrender of the possession of the automobile. Therefore, in my opinion, this defense asserts no reason under the evidence why the defendant should have a summary judgment.
The other argument presented is that the garage provisions of the policy exclude from the coverage of a permissive user situations where the possession of the automobile was given pursuant to a contract of sale. This argument overlooks the fact that even if there be no coverage under the garage provision to the policy, there is coverage, or may be coverage, under the comprehensive provisions of the policy, which contains no such exclusion.
I am authorized to state that Judge Webb joins me in this special concurrence.