Respondent, Farmer's Insurance Company of Idaho, brought this action seeking a declaratory judgment that its automobile
Following motions for summary judgment by both sides, the district court granted respondent's motion for summary judgment. The appellants appeal from that order and for the reasons stated below, we reverse and remand.
On December 23, 1973, the appellants Leonard and Helen Brown, and David Whitney, Helen Brown's son who lived with them in Boise, were visited by Dawnella Guernsey, a resident of Portland, Oregon. Dawnella is the daughter of Helen Brown and sister of David Whitney. Her father, Don F. Whitney, resides in Evanston, Wyoming.
During her stay in Boise, Dawnella decided to visit her father, Mr. Whitney, in Wyoming. Although Dawnella had driven to Boise in her own automobile, she decided to take the bus to Wyoming because of hazardous driving conditions. She left her car in Boise to be used if necessary or in an emergency.
During her absence the car was moved twice; once to make way for a street cleaner and once on February 1, 1974. On that date, David Whitney, her brother and a senior at Boise High School, asked his mother to use the car to drive his girl friend's mother to the bank. On his way to the bank, David Whitney collided with and injured Michael Breshears, a pedestrian.
Although Dawnella had not let David use her car when she was in Boise because she was using it, she neither granted nor denied him permission to use it while she was gone.
The single issue is whether the district court erred in granting respondent's motion for summary judgment based upon the state of the record at the time.
Under I.R.C.P. 56(c) summary judgment is properly granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In Petricevich v. Salmon River Canal Company, 92 Idaho 865, 452 P.2d 362 (1969), this Court stated that under I.R.C.P. 56(c) a motion for summary judgment is to be granted "whenever on the basis of evidence before the court a directed verdict would be warranted or whenever reasonable men could not disagree as to the facts." 92 Idaho at 871, 452 P.2d at 368. See also Straley v. Idaho Nuclear Corporation, 94 Idaho 917, 500 P.2d 218 (1972); Jephson v. Ambuel, 93 Idaho 790, 473 P.2d 932 (1970). In considering such evidence, it is well recognized that the facts are to be liberally construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences which might be reasonably drawn from the evidence. Straley v. Idaho Nuclear Corporation, supra; Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970). Moreover, the fact that both sides moved for summary judgment does not establish
Appellants contend that on the basis of the affidavits submitted David Whitney drove his sister's car with her express or implied permission. They further contend that if it is found that David Whitney had no such permission, the evidence supports a finding that Helen Brown had express permission to allow any member of the family to use the car under limited circumstances
We find that the above contentions raise genuine issues of material fact. Based on the sworn statements of Helen Brown and David Whitney reasonable men could differ as to whether permission had been given to only Helen Brown or to the entire household, including David.
The judgment is reversed and remanded.
Costs to appellants.
McFADDEN, SHEPARD, and BAKES, JJ., and SCOGGIN, District Judge, concur.
"That the company agrees `to pay all damages the insured becomes legally obligated to pay arising out of the ownership, maintenance or use, of the described automobile or a non-owned automobile.'
The unqualified word `insured' includes
(a) * * *
(b) With respect to a non-owned automobile,
(1) The named insured or a relative, and
(2) Any other person or organization not owning or hiring such automobile if legally responsible for its use by the named insured or relative, but only in the event such named insured or relative is legally liable for the occurrence; provided the actual use of the non-owned automobile by the persons in (1) and (2) above is with the permission of the owner."