Mountain West Farm Bureau Mutual Insurance v. Farmers Insurance Exchange Co.

                                                110.    83-482

                     I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                        1984




MOUNTAIN WEST FARM BUREAU MUTUAL
INSUFLANCE COMPANY,

                                  P l a i n t i f f and A p p e l l a n t ,



FARilmRS INSURATdCE EXCBANGE COMPANY,
GERALD McARTHUR, ROBERT McARTHUR
and J A N N I E L E E McARTHUR,

                                   D e f e n d a n t s and R e s p o n d e n t s .




APPEAL FROM:          T h e D i s t r i c t C o u r t of t h e F i f t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of B e a v e r h e a d ,
                      T h e I I o n o r a b l e L e r o y M c K i n n o n , Judge p r e s i d i n g .


COUNSEL O F RECORD:

         For Appellant:

                     Landoe, Brown, P l a n a l p ,            K o m m e r s and L i n e b e r g e r ,
                     B o z e m a n , Montana


         For Respondents:

                     J a m e s P. H a r r i n g t o n , H e l e n a , M o n t a n a
                     G a r y L . Walton, B u t t e , M o n t a n a




                                                 S u b m i t t e d on B r i e f s :   March 8, 1984

                                                                      Decided:         May 7 , 1 9 8 4



Filed:
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                                                Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
     Appellant Mountain West Farm Bureau Mutual                            Insurance
Company (Mountain West) appeals from a judgment of the Fifth
Judicial District Court (Beaverhead County) that its policy
of insurance extended coverage to Geral-d McArthur as a person
driving a covered automobile with the implied permission of
its owner.       We affirm.

     Mountain         West   insured a          fleet of corporate vehicles
owned by Ralph Huntley             &   Son Corporation.       One of the covered

automobiles was          a    1978       Toyota    Celica used       primarily      by
Barbara Huntley and Robert Huntley, the wife and son of the
corporation's president.
     Robert Huntley expressly granted permission to Gerald

NcArthur, a classmate at Beaverhead High School and close
friend,     to    drive      the       Toyota     vehicle    on    many    different
occasions.       McArthur testified that he and Robert Huntley had
an "understanding" that allowed McArthur to operate the car
if he     had    a    reason       for    taking    the     car    and    treated   it
properly.
     In the early morning hours of March 23, 1980, Huntley
and a friend decided to go to breakfast at the Truck Inn
while McArthur and two other friends remained in the car.
     Prior       to   their    entering the Truck                 Inn, one of the
friends (Schofield) called to Huntley and asked him for the
keys to the car so that he could listen to the radio. Huntley
gave the keys to Schofield with the admonishment that they
were only to listen to the radio a.nd not go anywhere.
     After Huntley and his                 friend entered the Truck Inn,
Officer Charles Osborne approached the car and questioned
Schofield regarding a possible curfew violation.                            The boys
locked the doors to the car and the officer returned to his
patrol car to radio for assistance.
       McArthur feared a curfew violation would cause him to
lose his privilege to be on the high school athletic teams.
The boys decided to take off.              McArthur climbed into the
driver's seat because he was the only                    licensed and able
driver.
       As   McArthur     was   backing   out   of    the     parking     space,
Officer Osborne grabbed the outside rear view mirror in an
attempt to stop the vehicle.             McArthur did not see Officer
Osborne.      Apparently the officer caught his night stick ring
on the vehicle and was thrown to the ground.                    McArthur was
unaware of the fact that as he left the parking lot he drove
over Officer Osborne.
       A    jury trial was      held   on June      15    and   16, 1983 to
determine Mountain West's coverage for this occurrence.                    The
jury   found that McArthur was           using      the    car with      Robert
Huntley's      implied    permission.       The      court      then    entered
judgment decreeing Mountain West to be an insurer of Gerald
McArthur for defense of the action and payment of any damages
arising out of the incident.
       The following issues are raised on appeal:
       1.    Whether the trial court erred in failing to rule
that implied consent did not exist as a matter of law.
       2.    Whether the trial court erroneously instructed the
jury regarding implied consent and permissive use.
       Mountain West argues that as a matter of law McArthur's
use could not have been with implied consent because the use
grossly deviated from any reasonable operation.                        Mountain
West reasons that the altercation with Officer Osborne and
the purpose of evading the police officer were factors which
removed McArthurls subsequent use of the vehicle from the
scope of any implied permission.                We disagree.
       A complete and unreasonable departure from the intended
use, or an intentionally dangerous and wrongful operation
could support a ruling that the use was outside of the scope
of permitted         use    as a matter         of   law.      However, it is
unnecessary to reach that issue in this case.                            There is
testimony that McArthur had permission to use the vehicle.
From the facts of this case the jury could have found, and
did find, that leaving the scene to avoid a curfew violation
was within the implied permission.
       Mountain West also argues that any permission granted to
McArthur was expressly revoked when Rob Huntley repeatedly
admonished         the    boys   not   to    "take off."          Mountain West
concludes that permission therefore could not exist as a
matter of law.
       There are two reasons why this argument must fail.                      In
the    first place         the   facts do not establish an absolute
revocation, without exceptions, of permission to use the car.
It would be reasonable to construe Huntley's admonishments as
prohibiting joy riding or unwarranted use of the vehicle
merely for the boys' pleasure at Huntley's inconvenience.                      A
jury       could     fairly      find,      that     when    the     intervening
circumstances            arose      requiring      immediate       action,    the
prohibition         was    rendered       inapplicable      and    the   original
permission continued.
       A    stronger       reason    is    that there       is testimony that
McArthur never heard the admonishment.
       The    jury    was     instructed     that    to    be   effective,   "a
revocation must be known to the person using the car at the
time of the accident."               This statement of law was jointly
offered by Mountain West and defendants and disposes of the
revocation issue.           There is sufficient evidence to raise a
jury    question       as     to   whether     Huntley's        revocation   of
permission was communicated to McArthur.
       Mountain West fina.11~argues that the district court
failed to properly instruct the jury regarding permissive use
and implied consent.
       The    following       instruction     was     jointly     offered    by
Mountain West and the defendants:
       "Permission to use an automobile and render the
       driver at the time of the accident an insured,
       under the Plaintiff's policy, may be express or
       implied. Implied permission is permission to use
       an automobile that is not expressly given, but is
       determined by the practice over a period of time.
       There is no question of express permission in this
       case.
       "It is the Plaintiff's position that implied
       permission was never granted to Gerald McArthur or,
       if granted, was revoked by         the facts and
       circumstances occurring on March 22, 1980.
       "It is the Defendants' position that implied
       permission was granted to Gerald McArthur and no
       revocation of this implied permission occurred.
       "It is the law that to be effective, a revocation
       must be known to the person using the car at the
       time of the accident."
       Mountain      West's    chal-lenges to        this   jointly    offered
instruction will not be heard for the first time on appeal.
Coleman v. Higgins (1960), 137 Mont. 222, 351 P.2d 901.
       Mountain West contends an additional instruction was
offered      and   should     have    been   given    by    the court which
addressed the scope of the permission.     In this case, the
accident occurred immediately upon McArthur's operation of
the car.     Thus the trial court correctly ruled that the
question of scope of permission could not be distinguished
from the question of fact of permission under the "facts and
circumstances" existing at the time of operation.
     The judgment of the Distric     t is affirmed.



We concur:


Chief Justice




Justices
Mr. Justice L.C. Gulbrandson dissenting.

      I respectfully dissent.
      McArthur, in claiming that he had implied permission
to use the Huntley vehicle, consistently testified that he
would have to have had a "good purpose" to use the vehicle.
The majority opinion states, "From the facts of this case
the jury could have found, and did find, that leaving the
scene to avoid a curfew violation was within the implied
permission."
      In my view, the plaintiff was entitled to a jury
instruction on the question of the permittee excluding or
deviating    from the scope of the permission given.        The
plaintiff offered such an instruction, which was refused by
the court.
      I would    reverse and    remand    for   failure to give
adequate jury instructions.




                                Justice