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