{ "id": 8358444, "name": "JOHNETTA PEMBERTON, Administratrix of the Estate of John W. Cannon, Deceased v. RELIANCE INSURANCE COMPANY", "name_abbreviation": "Pemberton v. Reliance Insurance", "decision_date": "1986-11-18", "docket_number": "No. 8614SC398", "first_page": "289", "last_page": "295", "citations": [ { "type": "official", "cite": "83 N.C. App. 289" } ], "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": "290 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "243 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552010 ], "year": 1978, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0173-01" ] }, { "cite": "191 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549123 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0132-01" ] }, { "cite": "315 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527282 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0391-01" ] }, { "cite": "227 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "30 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554865 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/30/0516-01" ] }, { "cite": "332 S.E. 2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719396, 4721386, 4721131, 4718827, 4724383 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0596-02", "/nc/313/0596-05", "/nc/313/0596-04", "/nc/313/0596-03", "/nc/313/0596-01" ] }, { "cite": "326 S.E. 2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524303 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0413-01" ] }, { "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": "221 S.E. 2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "28 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549271 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/28/0365-01" ] }, { "cite": "333 S.E. 2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691264, 4689281, 4697540, 4688502, 4695705 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0332-03", "/nc/314/0332-01", "/nc/314/0332-05", "/nc/314/0332-02", "/nc/314/0332-04" ] }, { "cite": "328 S.E. 2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524781 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0413-01" ] }, { "cite": "231 S.E. 2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558910 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0666-01" ] }, { "cite": "326 S.E. 2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719700 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0033-01" ] }, { "cite": "179 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559876 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0153-01" ] } ], "analysis": { "cardinality": 675, "char_count": 14451, "ocr_confidence": 0.811, "pagerank": { "raw": 5.720015185456745e-08, "percentile": 0.35887632831103283 }, "sha256": "30b2f8f5bfd7ea3240320d7e528bd25734faf3db9626a333dd2f987af079c90a", "simhash": "1:6b6d6322e3bc4638", "word_count": 2385 }, "last_updated": "2023-07-14T16:07:52.921422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Eagles concur." ], "parties": [ "JOHNETTA PEMBERTON, Administratrix of the Estate of John W. Cannon, Deceased v. RELIANCE INSURANCE COMPANY" ], "opinions": [ { "text": "BECTON, Judge.\nPlaintiff, as administratrix of the estate of John W. Cannon, filed this action against Reliance Insurance Company (Reliance) for satisfaction of a prior judgment entered against Douglas Holloway for injuries negligently inflicted upon John Cannon in an automobile accident. Reliance denied liability, asserting that Douglas Holloway had neither express nor implied permission to drive Edward B. Holloway\u2019s insured vehicle and that, therefore, the liability insurance policy issued by Reliance to Edward Holloway did not afford coverage for payment of the judgment against Douglas Holloway under N.C. Gen. Stat. Sec. 20-279.21 (b)(2) (1983 & Cum. Supp. 1985). The sole issue presented to the jury, to which it responded in the affirmative, was whether Douglas Holloway was \u201cin lawful possession\u201d of the automobile at the time of the accident.\nOn appeal, Reliance assigns as error the trial court\u2019s denial of Reliance\u2019s (1) motion for directed verdict at the close of the plaintiffs evidence, (2) renewed motion for directed verdict at the close of all the evidence, (3) motion for judgment notwithstanding the verdict, and (4) alternative motion for a new trial. We conclude that the trial judge properly denied the motions, and therefore we affirm.\nI\nOn 12 December 1981, a 1976 Buick Regal automobile driven by Douglas Holloway collided with another automobile which was parked alongside the curb of Glenbrook Avenue in Durham, North Carolina. John W. Cannon, who was seated in the parked automobile at the time of the collision, subsequently obtained a judgment against Douglas Holloway for injuries suffered in the accident. Mr. Cannon later died of causes unrelated to the accident.\nAt the time of the accident, Douglas Holloway lived with his mother, Wyvette Holloway, at her home on DaVinci Street in Durham. The Buick Regal automobile had been a gift to Wyvette Holloway from her son, Edward Holloway (Douglas\u2019s eldest brother). However, Edward remained record title owner of the car. The liability insurance policy covering the Regal, issued by Reliance to Edward Holloway, named Wyvette Holloway and Thomas Holloway (a third brother) as operators of the car.\nIn order to establish that Douglas Holloway was an impliedly permissive user of the Regal, the plaintiff offered at trial the testimony of Dennis Ellerbe, a friend and neighbor of Douglas Holloway at the time of the December 1981 accident. Mr. Ellerbe stated that he had gone riding with Douglas in the Regal nine or ten times in the month and a half immediately preceding the accident, using the car for fishing expeditions or for picking up auto parts. On those occasions he and Douglas would meet at Douglas\u2019 home on DaVinci Street and depart from there with Douglas at the wheel. Mr. Ellerbe testified that, on at least one occasion, Wyvette Holloway saw them leave together in the Regal, that she never tried to stop Douglas from using the car, and that Douglas never made any attempt to conceal his use of the car from his mother. Mr. Ellerbe further stated that he had seen Douglas driving the Regal around the neighborhood on several other occasions during the month prior to the accident.\nReliance introduced evidence at trial that Edward Holloway never gave permission for Douglas to operate the car, that Wy-vette Holloway had expressly denied Douglas permission to drive it, that Douglas\u2019s use of the vehicle was always without her knowledge or assent, and that Douglas made efforts to conceal his use of the Regal from his mother. In addition, cross examination of Douglas Holloway revealed that on 12 December 1981, at the time of the accident, Douglas was en route from the home of his brother, Thomas Holloway, to the house on DaVinci Street. On redirect examination, Douglas testified in pertinent part as follows:\nQ. So, you hid from Thomas the fact that you had the car?\nA. Yeah, because he knew I wasn\u2019t supposed to have it, too, and the day of the accident I went directly to his house and he told me I better take the car home because I knew I wasn\u2019t supposed to have it. That\u2019s what I was doing [when the accident occurred].\nII\nThe question presented by Reliance\u2019s motion for directed verdict is whether the evidence that Douglas Holloway was in lawful possession of the car at the time of the accident is sufficient to carry the case to the jury. See Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971). The plaintiff is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence, and all conflicts must be resolved in her favor. West v. Slick, 313 N.C. 33, 326 S.E. 2d 601 (1985). A directed verdict is proper only when the plaintiff has failed to show a right to recover upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E. 2d 678 (1977). Furthermore, a motion for judgment notwithstanding the verdict is essentially a renewal of the motion for directed verdict, and the same standard of sufficiency of the evidence applies to both motions. Smith v. Price, 74 N.C. App. 413, 328 S.E. 2d 811, disc. rev. allowed, 314 N.C. 332, 333 S.E. 2d 491 (1985).\nThe Motor Vehicle Financial Responsibility Act provides that an owner\u2019s policy of liability insurance\n[s]hall 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\nN.C. Gen. Stat. Sec. 20-279.21(b)(2) (1983 & Cum. Supp. 1985) (emphasis added). This Court has interpreted the 1967 amendment to the statute, which added the language in italics, to signify that the legislature favors a liberal rule of construction in determining the scope of coverage under the omnibus clause of liability insurance. Packer v. Travelers Insurance Co., 28 N.C. App. 365, 221 S.E. 2d 707 (1976); Jernigan v. State Farm Mutual Automobile Insurance Co., 16 N.C. App. 46, 190 S.E. 2d 866 (1972). An analysis of the case law interpreting the reach of this statute reveals that at least three classes of persons using an insured automobile must be covered by the omnibus clause: (1) persons named in the insurance policy (\u201cthe person named therein\u201d), (2) \u201coriginal per-mittees\u201d \u2014 persons using a vehicle with the express or implied permission of the named insured, and (3) other persons in lawful possession including \u201csecond permittees\u201d \u2014 third parties using a vehicle with the permission of an \u201coriginal permittee.\u201d See Belasco v. Nationwide Mutual Insurance Co., 73 N.C. App. 413, 326 S.E. 2d 109, disc. rev. denied, 313 N.C. 596, 332 S.E. 2d 177 (1985) and cases cited therein. In Belasco, this Court stated that \u201c. . . a person is in lawful possession of a vehicle under an omnibus clause if he is given possession of the automobile by the automobile\u2019s owner or owner\u2019s permittee under a good faith belief that giving possession of the vehicle to the third party would not be in violation of any law or contractual obligation.\u201d Id. at 419, 326 S.E. 2d at 113.\nReliance first assigns as error the trial court\u2019s denial of its original motion for directed verdict made at the close of the plaintiffs evidence. Reliance argues that the plaintiffs evidence alone is insufficient to support the jury\u2019s finding that Douglas Holloway was in lawful possession of the automobile. However, Reliance is no longer entitled to a ruling based solely on the plaintiffs evidence. A defendant who introduces evidence in his own behalf, after his motion for directed verdict at the close of the plaintiffs evidence is denied, waives the right to assign error to the denial. See Overman v. Gibson Products Co., 30 N.C. App. 516, 227 S.E. 2d 159 (1976); Citrini v. Goodwin, 68 N.C. App. 391, 315 S.E. 2d 354 (1984). In ruling on Reliance\u2019s renewed motion at the close of all the evidence and on the motion for judgment notwithstanding the verdict, Reliance\u2019s own evidence may be considered to the extent it is favorable to the plaintiffs case or not in conflict with the plaintiffs evidence. See id. See also Tate v. Bryant, 16 N.C. App. 132, 191 S.E. 2d 433 (1972).\nIt is clear from the record that Wyvette Holloway exercised the primary use and control of the insured vehicle with the permission of Edward, its owner, and was thus an \u201coriginal permit-tee.\u201d The plaintiff maintains that sufficient evidence was presented from which the jury could find that Douglas Holloway drove the automobile with the acquiescence and implied permission of Wyvette and was thus \u201cin lawful possession.\u201d The plaintiff further contends that the evidence supports a determination that Douglas, at the time of the accident, was driving with the express permission of Thomas Holloway, another \u201coriginal permittee.\u201d Because we agree with the plaintiffs latter assertion we find it unnecessary to decide whether sufficient evidence existed that Douglas had Wyvette\u2019s implied permission to use the car.\nFirst, the evidence shows that Thomas Holloway was listed in the insurance policy as an operator of the Buick Regal. Reliance contends that this is insufficient to establish that Thomas was an original permittee absent some further showing that Thomas used the car or was aware that he had the authority to use it. We reject that contention and hold that the naming of Thomas in the policy as an operator of the vehicle is prima facie evidence from which the jury could infer that Thomas Holloway had the permission of Edward Holloway, the owner, to use the car.\nSecond, Douglas Holloway\u2019s own testimony revealed that at the time of the accident he was driving home after being told by Thomas that he \u201cbetter take the car home\u201d because he knew he wasn\u2019t supposed to be driving it. Reliance argues that this merely constitutes an affirmation by Thomas that Douglas was not permitted to drive the Regal. However, this testimony is susceptible of another interpretation \u2014 a jury could reasonably infer from it that Thomas gave Douglas the express permission to return the Regal to the DaVinci Street house.\nIn concluding our discussion of \u201clawful possession,\u201d we find it necessary to clarify the definition of that term which this Court articulated in Belasco v. Nationwide. Reliance maintains that Belasco requires a driver to have been literally \u201cgiven possession\u201d of a vehicle in order to be \u201cin lawful possession.\u201d It would follow that Thomas could not have given possession on the day of the accident because Douglas already had possession of the car, and therefore Thomas\u2019s directive to Douglas to take the car home could not suffice to establish \u201clawful possession.\u201d However, Reliance overemphasizes the literal language used in Belasco. It was not our intention to require a literal physical handing over of a vehicle before \u201clawful possession\u201d may occur. To do so would be to impose a more strict standard than that applied in determining the existence of permission. Yet, this Court has held that parties seeking recovery under a theory of permission must meet a higher standard than those seeking recovery under a theory of mere lawful possession. Carson v. Nationwide Insurance Co., 36 N.C. App. 173, 178, 243 S.E. 2d 429, 432 (1978).\nIn summary, we hold that there was adequate evidence tending to show that Thomas Holloway was an \u201coriginal permittee\u201d of Edward Holloway and that Thomas gave lawful possession of the Regal to Douglas Holloway within the meaning of Belasco and N.C. Gen. Stat. Sec. 20-279.21(b)(2). Therefore, the plaintiff was entitled to have the issue of lawful possession submitted to the jury.\nIII\nIn support of its alternative motion for a new trial, Reliance asserts that the evidence adduced in this case is inadequate to support the verdict; that hence, the verdict must be either the result of the jury\u2019s disregard for, or misunderstanding of, the court\u2019s instructions or the product of passion, prejudice, or sympathy.\nOur scope of review of a trial judge\u2019s discretionary order granting or denying a new trial is extremely limited. Such an order may be reversed on appeal only in those \u201cexceptional cases\u201d in which a manifest abuse of discretion is clearly demonstrated by the record. Worthington v. Bynum, 305 N.C. 478, 290 S.E. 2d 599 (1982). We have already concluded that the evidence of \u201clawful possession\u201d was adequate to support the jury\u2019s verdict. We find no abuse of discretion by the trial court in denying a new trial.\nFor the foregoing reasons, we hold that the trial court properly denied Reliance\u2019s motions for directed verdict, judgment notwithstanding the verdict, and new trial.\nAffirmed.\nJudges Webb and Eagles concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Neil M. O\u2019Toole for plaintiff appellee.", "Faison, Brown, Fletcher & Brough, by 0. William Faison and Reginald B. Gillespie, Jr., for defendant appellant." ], "corrections": "", "head_matter": "JOHNETTA PEMBERTON, Administratrix of the Estate of John W. Cannon, Deceased v. RELIANCE INSURANCE COMPANY\nNo. 8614SC398\n(Filed 18 November 1986)\n1. Insurance \u00a7 87\u2014 automobile liability insurance \u2014 permission for driver to drive\nWhere plaintiffs intestate was injured in an automobile accident and obtained a judgment against the driver, but defendant, which insured the vehicle, denied liability on the ground that the driver had neither express nor implied permission to drive the vehicle, the trial judge properly denied defendant\u2019s motions for directed verdict, judgment n.o.v., and a new trial where the evidence was sufficient for the jury to find that the driver\u2019s brother was listed in the insurance policy as an operator of the insured vehicle and was therefore an original permittee; at the time of the accident the driver was driving home after being told by the brother that he \u201cbetter take the car home\u201d because he knew he wasn\u2019t supposed to be driving it; and the jury could reasonably infer from this evidence that the brother gave the driver the express permission to drive the vehicle to his home.\n2. Insurance \u00a7 87\u2014 automobile liability insurance \u2014 lawful possession of driver-physical handing over not required\nA literal physical handing over of a vehicle is not required before \u201clawful possession\u201d may occur.\nAppeal by defendant from Bowen, Judge. Judgment entered 20 December 1985 in Superior Court, DURHAM County. Heard in the Court of Appeals 14 October 1986.\nNeil M. O\u2019Toole for plaintiff appellee.\nFaison, Brown, Fletcher & Brough, by 0. William Faison and Reginald B. Gillespie, Jr., for defendant appellant." }, "file_name": "0289-01", "first_page_order": 317, "last_page_order": 323 }