dissenting:
I do not share the same views taken by my learned colleagues in this case and therefore must dissent.
My conclusions of fact are based solely upon the affidavit and deposition of Ronald Poths, the moving party in this appeal, and my conclusions of law are based upon the Hays case, specifically, guidelines (1) and (4) as set forth in the majority opinion.
As to guideline (1), even if we assume that Robert Susmark, the original permittee, is, for every practical sense, the owner of the vehicle in question; that his father or mother held title for convenience; and that Robert Susmark had the general custody and control of the automobile in dispute (Poths deposition stated that every time Robert desired to use the car he had “to get permission to leave and take the car”), still, on the day of the accident, there was a specific understanding that Poths would not use the car. At his deposition, he testified to a conversation with Robert, relating to the use of the car, as follows:
Q What was the conversation about ?
A He wanted to know if I was going to use the car and I told him no.
Q Going to use the car that night ?
A Yes.
Q And you told him ?
A I wasn’t going to because we had trouble with it and we only had first gear and third gear, and I didn’t want to wreck the transmission any more.
Q Was there any other conversation between you and Robert Susmark on that date?
A I don’t believe so.
Even more important is the fact that Poths always had express permission, never implied, when he drove the Susmark vehicle. At the same deposition, upon being queried on this point, his testimony was as follows:
Q Mr. Poths, you stated in response to Mr. Lindner’s question that it was all right with Robert Susmark for you to drive the car when he didn’t want to use it himself. Do you remember making that answer to his question?
A Yes.
Q Prior to such use, would you ask his permission, whether you could use it or not ?
A Yes, when I knew he was going to be at work, I would ask.
Q So the times that you used it when it was all right with him, it was by his express consent that you use it. Is that correct?
A. Yes.
Q You stated that Mrs. Susmark saw you driving the car. Did she say anything to any other person other than yourself about your driving the car?
A I couldn’t say.
Q ¥ou stated in response to Mr. Simpson’s question that you drove this car from school on one occasion. At that time did you ask Robert’s permission to drive the car from school to your home?
A I didn’t really ask for permission. I told him I would probably use it.
Q What did he say ?
A I can’t say for sure. I told him I would probably use the car, and he said okay or something.
Q You don’t remember the exact words ?
A No, I don’t.
It is my opinion that Poths did not qualify under guideline (1).
As to guideline (4), there was no knowledge on the part of Lawrence Susmark, one of the named insured, that Poths was driving the vehicle in question. The following testimony by Poths at his deposition on this point is clear when he was examined as follows:
Q Did you ever discuss your use of this car with his father, Lawrence Susmark?
A No.
Q Did Lawrence Susmark know that you were using the car?
A No, he didn’t.
Mrs. Anna Doris Susmark, mother of Robert, and the other named insured, supposedly saw Poths on one occasion, follow her into the Susmark driveway while Poths was driving the vehicle. Assume that she did see Poths behind the wheel, even though she claims no memory of such occasion; it is my opinion that one act does not constitute a “course of conduct” which would impute “knowledge” to the named insured as required by guideline (4) of the Hays case.
Webster defines “course” as a number of like things in the same regular order; a series. (Webster’s New Twentieth Century Dictionary (unabridged) 2nd Ed (1964).) One act does not conform to such definition.
On the night in question, there was definitely no express permission for Poths to use the vehicle and he would necessarily then be dependent upon past performance to establish an implied permission. His own statements, quoted above, indicate that at all times prior to the date of the accident he obtained express permission before driving the vehicle. I am of the opinion that it was incumbent upon Poths to show that he had, previous to the night in question, driven Robert’s car, without express permission and to the knowledge of Robert or the named insureds, without objection.
Poths did not do so, and therefore, the trial court was correct in its judgment and I would affirm.