Ford Marketing Corp. v. National Grange Mutual Insurance

BROCK, Chief Judge. Appellant makes no argument that the trial judge erred in concluding that Melton was not using the truck with the express or implied permission of Baucom. However, appellant does argue strenuously that the trial judge erred in concluding that Melton was not in lawful possession of the Baucom truck at the time [301] of the collision. Our discussion, threfore, is confined to the question of lawful possession. In 1967 the legislature amended G.S. 20-279.21 (b) (2) by adding to the persons insured under an owner’s liability insurance policy “any other person in lawful possession” of the insured’s vehicle. In the case of Packer v. Insurance Co., 28 N.C. App. 365, 221 S.E. 2d 707 (1976), this Court briefly reviewed the legislative and judicial history of the statutorily required liability coverage under an owner’s liability insurance policy and made reference to two of the appellate cases which had dealt with the 1967 amendment. See Insurance Co. v. Broughton, 283 N.C. 309, 196 S.E. 2d 243 (1973), and Jernigan v. Insurance Co., 16 N.C. App. 46, 190 S.E. 2d 866 (1972). See also Insurance Co. v. Chantos, 25 N.C. App. 482, 214 S.E. 2d 438 (1975), where the original permittee’s permission to another to drive the car constituted lawful possession by the second permittee so as to afford coverage under the owner’s policy, although there was no express or implied permission from the owner. In Packer, supra, there was evidence that an employee of the owner of a truck was instructed to take the truck to his home over the weekend and to pick up other employees on Monday morning to transport them to the job site. The employee did not have permission to drive the truck for his personal use. On Saturday while driving the truck for his personal use, the employee negligently caused injuries to plaintiff. We held that this evidence was sufficient to support a jury verdict finding that the employee was in lawful possession of the truck and to support a judgment holding the owner’s liability carrier liable. Concerning the 1967 amendment, we stated in Packer: “Clearly the legislature intended a change in the [owner’s] liability insurance coverage previously required by statute.” In Packer, it was our opinion that the intent of the legislature was that North Carolina should follow no less than the liberal rule discussed in 5 A.L.R. 2d 600, 622, which is set out as follows: “The employee need only to have received permission to take the vehicle in the first instance, and any use while it remains in his possession is ‘with permission’ though that use may be for a purpose not contemplated by the assured when he parted with possession of the vehicle.” [302] It is argued that by the 1967 amendment to the coverage requirement for an owner’s liability insurance policy (“any other person in lawful possession”), the legislature intended that the owner’s liability coverage should extend to cover any operator of the owner’s vehicle except a thief. However, because of other North Carolina statutes, coverage of “any other person in lawful possession” does not seem to cause such a significant extension of coverage. At the time of the 1967 amendment to G.S. 20-279.21 (b) (2), which added to those persons insured under an owner’s liability insurance policy “any other person in lawful possession” of the owner’s vehicle, we had in effect in this State G.S. 20-105 which provided in pertinent part: “Any person who drives or otherwise takes and carries away a vehicle, not his own, without the consent of the owner thereof, and with intent to temporarily deprive said owner of his possession of such vehicle, without intent to steal the same, is guilty of a misdemeanor. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner’s consent on a previous occasion to the taking or driving of such vehicle by the same or a different person.” Although G.S. 20-105 was repealed by Session Laws 1973, Chapter 1330, Sec. 39, effective January 1, 1975, Sec. 38 of the same Chapter 1330 enacted what now appears as G.S. 14-72.2, also made effective January 1, 1975. General Statute 14-72.2 (a) and (b) provide: “(a) A person is guilty of an offense under this section if, without the consent of the owner, he takes, operates, or exercises control over ... a motor vehicle ... of another. “ (b) Consent may not be presumed or implied because of the consent of the owner on a previous occasion . . . given to the person charged or to another person.” The current criminal statute, like its predecessor, presents a formidable obstacle to finding a person to be in lawful possession without some prior consent of the owner. We recognize that the current statute (G.S. 14-72.2) has been declared void for vagueness (State v. Graham, 32 N.C. App. 601, 233 S.E. 2d 615 (1977); nevertheless, the current statute, like its predecessor, shows a clear legislative intent to make it unlawful for [303] a person to take or operate the motor vehicle of another without the consent of the owner, and the consent of the owner on a prior occasion does not presume or imply consent on a later occasion. In the present case it is clear that Melton did not have the consent of either Baucom or Harrington for Melton to take and operate the truck at the time that he did so and at the time of the collision in question. It is now obvious that neither Baucom nor Harrington would have caused Melton to be prosecuted for a violation of the criminal statute. Nevertheless, does Harrington’s after-the-fact statement that he would have given Melton permission to use the truck keep Melton’s conduct at the time he took and drove the truck from being in violation of the provisions of'the criminal statute? It is argued that the close kinship and social ties between Melton and Harrington and the family purpose of the use of the truck by Melton mitigate against Melton’s possession of the truck being in violation of the criminal statute, and particularly so in the light of Harrington’s after-the-fact expression of consent to Melton’s use. In determining the legislature’s intent when it enacted the “any other person in lawful possession” amendment to G.S. 20-279.21 (b) (2), we cannot overlook the intent of that same body in its enactment of the popularly called “temporary larceny” and “unauthorized use” statutes (G.S. 20-105, repealed effective 1 January 1975; and G.S. 14-72.2, enacted effective 1 January 1975). Although Melton may not have possessed mens rea and although his conduct may not have been malum in se, nevertheless, his act was malum prohibitum by legislative enactment. The very conduct which constituted the violation of a criminal statute cannot be said • to have placed Melton “in' lawful possession” for purposes of liability insurance coverage. If the legislature wishes to extend the owner’s automobile liability insurance coverage of “any other person in lawful posses-son” to encompass the facts of this case, it will have to adapt its criminal statutes to that intent. Affirmed. Judges Vaughn and Clark concur.