Aetna Casualty and Surety Co. v. Hunt

Decision Date24 October 1973
Docket NumberNo. 73-1071.,73-1071.
Citation486 F.2d 81
PartiesThe AETNA CASUALTY AND SURETY COMPANY, a corporation, Plaintiff-Appellee, v. Clifford R. HUNT et al., Defendants-Appellees, and State Farm Mutual Automobile Insurance Company, Intervenor-Appellee, Wilford Lamar Teel et al., Intervenors-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Jefferson G. Greer, Tulsa, Okl., for intervenors-appellants.

Dale F. McDaniel, Tulsa, Okl., for plaintiff-appellee.

E. D. Hieronymus, Tulsa, Okl., for defendant-appellee Independence Fire and Cas. Co.

Joseph A. Sharp, Tulsa, Okl., for Intervenor-appellee State Farm Mutual Auto. Ins. Co.

Before PHILLIPS, HILL and DOYLE, Circuit Judges.

HILL, Circuit Judge.

This is an appeal from a declaratory judgment entered by the United States District Court for the Northern District of Oklahoma sitting without a jury. Originally in this diversity action Aetna Casualty and Surety Company sought an adjudication that it was under no liability to defend or indemnify either Clifford Hunt, Mary Hunt, Charles Hunt or Dale Watson as a result of an automobile accident on September 14, 1969.1 State Farm Mutual Automobile Insurance Company2 and Independence Fire and Casualty Company3 were allowed to intervene as they sought similar declaratory judgments. Additionally, Wilford Teel and others were allowed to intervene as they had previously filed suit in Oklahoma state court against the defendants in the instant complaint seeking damages suffered as a result of the accident.

The majority of the evidence presented to the trial court was introduced by deposition. It appears from these depositions and other evidence that on September 14, 1969, defendant Dale Watson, while driving a 1963 Chevrolet automobile owned by Charles Hunt, attempted to pass another vehicle on State Highway 169 near Oologah, Oklahoma, and in that attempt struck headon the vehicle in which the Teel family was riding. As a result of that accident, two passengers in the Teel car were killed and two others were seriously injured.

The testimony indicates that earlier on September 14 a group of teenagers, including Charles Hunt, Michael Clinton, Dale Watson, Cinda Dudley and Linda Dudley, had met and gone riding in Hunt's 1963 Chevrolet. Hunt allowed Cinda Dudley to drive at least near Oologah Lake and possibly over a much greater distance. Hunt then allowed Clinton to drive until they finally arrived at Linda Dudley's apartment. A short while later, Hunt allowed Clinton to take the car to visit a girlfriend while Hunt remained at the apartment with Dale Watson and the two girls. Clinton returned in the early evening and from this point the testimony is greatly confused and the evidence is generally contradictory.

Michael Clinton testified that when he returned to the apartment he did not leave the car; he honked and Linda Dudley appeared at the door, then returned to the apartment. Dale Watson then came out and told Clinton to scoot over because Hunt had given him permission to drive. Clinton slid over, rolled down the window and called to Hunt to verify that such permission had been given, but Watson drove off before Clinton received any reply.

Cinda Dudley testified that she did not hear the horn, but that Clinton came to the door of the apartment and that she believed all three boys eventually went out to the car. Later Hunt returned to the apartment and the other boys left.

Linda Dudley testified that she heard the car horn and that Watson went out to the car horn and then returned to the apartment to ask Hunt what time Hunt wanted them to come back. Linda believed that Hunt answered "later".

Charles Hunt testified that he heard Clinton arrive but did not hear the horn; that he believed he was in the bathroom and that he apparently was not in the room when Dale Watson left the apartment.

Dale Watson had a history of mental deficiency and treatment for such dating back to childhood. Additionally, he suffered serious head injuries in the accident on the fourteenth and thus was unable to recount accurately the details of that day. His testimony was greatly confused and of little value. He did not even recall clearly that he met the girls or went to their apartment. He believed that he and Michael Clinton left from Hunt's house, not the apartment. He did testify that Hunt had not given him permission to drive.

From the apartment, Dale Watson drove to Michael Clinton's home where Michael stayed and then went on several missions of his own prior to the accident.

At the trial of this case, the parties advanced directly opposite interpretations of the evidence. The injured Teels alleged that these facts established liability on the part of Charles Hunt, Michael Clinton and Dale Watson. They further urged that the three insurance carriers were required to indemnify their insureds under provisions of the various policies in effect on September 14. The insurance carriers each denied any liability based upon policy language which limited their coverage to situations in which the automobile was operated with the permission of the owner, named insured or person in lawful control of the vehicle. They urged that the facts established that Dale Watson had taken the vehicle without permission and that none of the theories advanced by the Teels was applicable to this factual setting.

After the presentation of the depositions and the limited amount of oral testimony offered in this case, the trial court adjourned the proceedings to a later date and indicated it would take the matter under advisement. At this point it was assumed that oral arguments would be had at a later time, and the court in fact allotted specific time for the argument of appellants' counsel. Subsequently, without notifying any of the parties, the court made findings of fact and conclusions of law and entered judgment for the insurance carriers on April 2, 1971. That ruling was appealed to this court and was reversed and remanded in an opinion dated August 17, 1972. Aetna Cas. & Surety Co. v. Hunt, 10 Cir., 466 F.2d 1203. In that opinion the case was returned to the district court with instructions to allow additional evidence, grant oral arguments and reconsider the case. Upon return to district court, no additional evidence was offered and oral arguments were heard. The trial court again made findings and conclusions and entered judgment for the carriers. From that judgment the Teels now appeal. We have reviewed the evidence and must affirm.

Before proceeding with any discussion of the evidence in this case, however, we must note the various contentions of the parties as to the applicable standard of review in a case such as this. Appellants apparently urge that Cherot v. United States Fidelity & Guar. Co., 264 F.2d 767 (10th Cir. 1959), allows this court to make an independent evaluation of all the evidence as the majority of it was presented in documentary form. Appellees, on the other hand, urge that because some oral testimony was received, the doctrine expressed in Cherot is completely inapplicable. Neither of these...

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