{ "id": 8525096, "name": "DONALD WAYNE STANLEY and SOUTH CAROLINA INSURANCE COMPANY v. NATIONWIDE MUTUAL INSURANCE COMPANY", "name_abbreviation": "Stanley v. Nationwide Mutual Insurance", "decision_date": "1984-11-06", "docket_number": "No. 8316SC1181", "first_page": "266", "last_page": "270", "citations": [ { "type": "official", "cite": "71 N.C. App. 266" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "196 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558743 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0309-01" ] }, { "cite": "221 S.E. 2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549271 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0365-01" ] }, { "cite": "190 S.E. 2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548521 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0046-01" ] }, { "cite": "201 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "181 S.E. 2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555063 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0384-01" ] } ], "analysis": { "cardinality": 431, "char_count": 8301, "ocr_confidence": 0.844, "pagerank": { "raw": 2.5935641578925533e-07, "percentile": 0.8188554622296512 }, "sha256": "5496e7baa695504fd6b75c86b1e23374aa1f8a623f3ae6946060387b3b0b44e7", "simhash": "1:a76b45766fb9de62", "word_count": 1357 }, "last_updated": "2023-07-14T17:51:06.115640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Whichard concur." ], "parties": [ "DONALD WAYNE STANLEY and SOUTH CAROLINA INSURANCE COMPANY v. NATIONWIDE MUTUAL INSURANCE COMPANY" ], "opinions": [ { "text": "EAGLES, Judge.\nAppellant Nationwide has violated Rule 28(b)(5), Rules of Appellate Procedure in that it failed to set out its argument in its brief in the form of questions immediately followed by a reference to the assignments of error and exceptions pertinent to the questions. By application of Rule 28, Nationwide has abandoned its entire appeal. However, due to the serious questions presented on appeal and the brevity of the record, we are persuaded, in the interest of justice and in our discretion, as permitted by Rule 2, Rules of Appellate Procedure, to waive the error under Rule 28.\nDefendant assigns as error the trial court\u2019s refusal to allow its motions for directed verdict and to have the verdict set aside. We find no error.\nOn appeal from an order granting or denying a directed verdict, we must determine the sufficiency of the evidence based upon the same standards as those applied by the trial judge. Naylor v. Naylor, 11 N.C. App. 384, 181 S.E. 2d 222 (1971).\nA motion for directed verdict raises the question as to whether there is sufficient evidence to go to the jury. The test that the trial court must use is whether plaintiffs evidence, taken as true and in the light most favorable to the plaintiff is insufficient as a matter of law to justify a verdict for the plaintiff. Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). Applying this test to the evidence submitted by plaintiffs at trial, it is clear from the record that the evidence was sufficient to go to the jury.\nNationwide argues that where a person obtains from another the possession of an automobile by falsely representing that he is a licensed driver, that the possession so obtained is not \u201clawful possession\u201d within the meaning of G.S. 20-279.21. We disagree.\nG.S. 20-279.21(b)(2) states, in pertinent part:\n[An] owner\u2019s policy of liability insurance . . . shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, or any other persons in lawful possession, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles. [Emphasis added.]\nNationwide urges that one cannot have lawful possession without permission and that by falsely representing to Mitchell Jacobs that he had a valid driver\u2019s license, Wayne Jacobs did not have permission and as a result, no lawful possession, of the 1974 AMC Matador automobile. The case law in North Carolina is to the contrary.\nNationwide relies strongly on Jernigan v. State Farm Mutual Automobile Insurance Company, 16 N.C. App. 46, 190 S.E. 2d 866 (1972) for a proposition stated in dictum that permission is an essential element of lawful possession. We have expressly rejected the proposition that \u201cpermission\u201d is necessary for \u201clawful possession\u201d in Packer v. Traveler\u2019s Insurance Company, 28 N.C. App. 365, 221 S.E. 2d 707 (1976), where we held that:\n[F]ailure of plaintiff to offer evidence of permission to drive on the very trip and occasion of the collision is not fatal to plaintiffs case. Plaintiffs evidence was sufficient to justify a verdict finding that [the driver] was in lawful possession of the insured\u2019s vehicle at the time of the collision. 28 N.C. App. at 368, 221 S.E. 2d at 709.\nThe evidence is clear that Mitchell Jacobs did not give Wayne Jacobs permission to drive without a valid driver\u2019s license, and the jury so answered the issue of permission.\nIt is also clear that Mitchell Jacobs was a lawful owner of the 1974 AMC Matador automobile and could give lawful possession of the automobile to Wayne Jacobs. The jury found from these facts that the possession was lawful. We agree. It seems clear to us that when lawful possession has been shown, further proof is not required that the operator had permission to drive on the very trip and occasion of the collision. See, Insurance Co. v. Broughton, 283 N.C. 309, 196 S.E. 2d 243 (1973), where the addition to G.S. 20-279.21(b)(2) of \u201cany other persons in lawful possession\u201d is briefly discussed.\nTo place a burden of proving \u201cpermission\u201d on plaintiff as well as \u201clawful possession\u201d is a burden heavier than the legislature intended in G.S. 20-279.21(b)(2).\nFor these reasons we find no error. Defendant\u2019s other arguments are without merit.\nAffirmed.\nJudges Arnold and Whichard concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Bruce W. Huggins, for plaintiff-appellee South Carolina Insurance Company.", "I. Murchison Biggs, for defendant-appellant Nationwide Mutual Insurance Company." ], "corrections": "", "head_matter": "DONALD WAYNE STANLEY and SOUTH CAROLINA INSURANCE COMPANY v. NATIONWIDE MUTUAL INSURANCE COMPANY\nNo. 8316SC1181\n(Filed 6 November 1984)\n1. Appeal and Error \u00a7 45\u2014 form of arguments in brief\nAppellant violated App. Rule 28(b)(5) by failing to set out its argument in its brief in the form of questions immediately- followed by a reference to the assignments of error and exceptions pertinent to the questions.\n2. Insurance \u00a7 87.2\u2014 automobile liability insurance \u2014 lawful possession of vehicle \u2014 false representation concerning driver\u2019s license\nA driver who obtained possession of an automobile from the owner by falsely representing that he had a valid driver\u2019s license was in \u201clawful possession\u201d of the vehicle within the meaning of G.S. 20-279.21 so that his operation of the vehicle was covered by the owner\u2019s automobile liability policy.\nAPPEAL by defendant, Nationwide Mutual Insurance Company, from McKinnon, Judge. Judgment entered 15 September 1983 in Superior Court, ROBESON County. Heard in the Court of Appeals 30 August 1984.\nThis is a civil action in which plaintiffs, South Carolina Insurance Company (South Carolina) and David Wayne Stanley, seek to require defendant, Nationwide Mutual Insurance Company (Nationwide), to pay a judgment pursuant to its automobile liability insurance coverage extended to Mitchell and Teresa Jacobs.\nThe essential facts are:\nMitchell and Teresa Jacobs owned a 1974 AMC Matador automobile which was insured by Nationwide. On 2 May 1979, Wayne Jacobs, Mitchell Jacobs\u2019 brother, sought to borrow the automobile in question. Mitchell Jacobs asked Wayne if he had a driver\u2019s license. Wayne produced a North Carolina identification card, asserting to Mitchell Jacobs that he had a valid driver\u2019s license. The North Carolina identification card is similar in appearance to a driver\u2019s license.\nMitchell Jacobs knew that his brother\u2019s driver\u2019s license previously had been revoked, but believed the identification card was a driver\u2019s license and as a result, gave him the keys to the automobile.\nLater that same day, Wayne Jacobs was operating the borrowed automobile in Lumberton when he was involved in a collision with an automobile owned and operated by plaintiff Stanley. Stanley suffered bodily injury and property damage as a result of the collision. In a prior action, Stanley sued Wayne, Mitchell and Teresa Jacobs recovering on 13 March 1980 a judgment for $20,-000 plus interest from Wayne Jacobs only.\nNationwide defended this prior action under a non-waiver agreement and refused to pay the judgment entered against Wayne Jacobs. South Carolina paid Stanley $16,375 in settlement of his claim for damages under its uninsured motorist\u2019s policy issued to him.\nOn 12 February 1982, Stanley and South Carolina filed this action against Nationwide to require it to pay the $20,000 judgment entered against Wayne Jacobs under its automobile liability policy issued to Mitchell and Teresa Jacobs.\nNationwide moved for directed verdict at the close of plaintiffs evidence and at the close of all evidence. The jury returned the following verdicts:\n(1) At the time of the accident on 2 May 1979 was Wayne Jacobs operating the 1974 AMC Matador automobile owned by Mitchell and Teresa Jacobs with the permission of its owners, or either of them?\nAnswer: No\n(2) At the time of the accident on 2 May 1979 was Wayne Jacobs in lawful possession of the 1974 AMC Matador automobile owned by Mitchell and Teresa Jacobs?\nAnswer: Yes\nJudgment was entered against Nationwide for $15,000 plus interest which was ordered paid to South Carolina in subrogation of Stanley\u2019s rights. Nationwide appeals, Stanley does not participate in this appeal and South Carolina is now the real party in interest.\nBruce W. Huggins, for plaintiff-appellee South Carolina Insurance Company.\nI. Murchison Biggs, for defendant-appellant Nationwide Mutual Insurance Company." }, "file_name": "0266-01", "first_page_order": 300, "last_page_order": 304 }