Allstate Insurance Company v. Hiseley

• Decision Date: 08 September 1972
• Docket Number: No. 71-1721.,71-1721.
• Citation: 465 F.2d 1243
• Parties: ALLSTATE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Keith HISELEY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

465 F.2d 1243 (1972)

ALLSTATE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Keith HISELEY et al., Defendants-Appellees.

No. 71-1721.

United States Court of Appeals, Tenth Circuit.

September 8, 1972.

James E. Poe, Tulsa, Okl. (Richard D. Gibbon, of Covington, Gibbon & Poe, Tulsa, Okl., on the brief), for plaintiff-appellant.

Tom R. Mason, Muskogee, Okl. (Bonds, Matthews & Bonds, Joe R. Boatman, and Max D. Watkins, Muskogee, Okl., with him on the brief), for defendants-appellees.

Before PHILLIPS, SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Allstate Insurance Company brought a declaratory judgment action seeking a declaration that neither of two automobile insurance policies issued by it were applicable to or afforded coverage for any of the named defendants with regard to the consequences of a two-car collision between a Chrysler and a Ford. The named defendants in the declaratory judgment proceeding were the several occupants of both the Chrysler and the Ford.

Prior to the accident in question, Allstate had issued an automobile indemnity policy to Wanda Maher, the owner of the Chrysler. The other policy of insurance here involved had been issued by Allstate to one Tommie Hiseley, the father of Keith Hiseley, the latter being the driver of the Chrysler at the time when the Chrysler forced the Ford off the highway and into a ditch.

Trial was to the court and resulted in a declaratory judgment that both policies of insurance were in force and effect at the time of the aforesaid collision and that no exclusionary provision of either policy had application. In thus holding, the trial court rejected the contention advanced by Allstate that neither policy of insurance was in force and effect because at the time of the collision Keith Hiseley, the driver of the Chrysler, did not have permission to drive from the named insured owner, Wanda Maher; and, alternatively, that coverage under both policies was expressly excluded under a clause in each that the policy did not apply to "bodily injury or property damage caused intentionally by or at the direction of the insured." Allstate now appeals.

In our disposition of the matter we shall accept as correct the trial court's finding that Hiseley at the time of the collision was driving the Chrysler with the implied permission of Wanda Maher, the owner. In this regard our study of the record indicates that there is supporting evidence for such finding. However, in our view, the trial court's further finding that "the evidence does not establish an intent to injure through the driving of the Chrysler automobile" is clearly erroneous and accordingly the judgment must be reversed. To demonstrate the correctness of our own conclusion, the operative facts must be fully developed.

Wanda Maher, the owner of the Chrysler, gave her sixteen-year-old son, David, permission to drive the Chrysler from Warner, Oklahoma, to nearby Muskogee, the purpose of the trip being to enable David and a friend to see a drive-in movie. Instead, David and about five of his friends drove to Marvin's Bar, located somewhere on the road to Muskogee, where all consumed some beer. Parked outside Marvin's Bar was a Ford, which it later developed was driven by one Gary Alverson, one of the defendants in the declaratory judgment proceeding.

As David Maher and his group were exiting Marvin's Bar, one of their number, for no apparent reason other than his consumption of beer, proceeded to knock out a glass window of the unoccupied Ford. The Chrysler, with one Lester Leake, another defendant in the declaratory judgment action, at the wheel, was then driven eastward into Warner, stopping at the Gulf Cafe for coffee.

In the meantime, Gary Alverson, and his friend, Finsel, exited Marvin's Bar and noticed that the glass in their car had been broken. They then proceeded to drive eastward towards their home in Fort Smith, Arkansas. Alverson apparently also stopped at the Gulf Cafe in Warner to inquire about directions. In any event, he espied the parked Chrysler and, determining to his own satisfaction that it was an occupant of that car who had broken his window, he proceeded to throw a pop bottle through a window of the Chrysler. Alverson and his friend quickly departed the scene and continued their eastward trek towards Fort Smith.

When David Maher and his group found that a window in the Chrysler had been broken, they for some reason suspected at once that the deed had been perpetrated by an occupant of the Ford and they determined to give pursuit. At this point, Lester Leake was driving, Keith Hiseley was in the middle of the front seat, and David Maher was in the front seat on the right-hand side. Driving at speeds over 100 miles per hour, the Leake-driven Chrysler soon overtook the Ford driven by Gary Alverson. Then, over a distance of many miles, the Chrysler "bumped" or "rammed," depending on the point of view of the particular witness, the rear end of the Ford. Leake testified that on several occasions Hiseley would "put his foot onto my foot, which was on the gas pedal, and then he stepped down on it to make me speed up, and then he took the steering wheel and ran me into their car."

The Ford eventually either slowed down, or stopped, to the end that the Chrysler went on ahead and came to a complete stop, with the occupants getting out of the Chrysler. The Ford then started up suddenly and passed the stopped Chrysler. Keith Hiseley then took the keys from Leake, by force, and assumed control of the Chrysler. With Hiseley driving, Leake now seated in the middle, and David Maher seated on he right-hand side of the front seat, the chase was resumed. The Hiseley-driven Chrysler soon overtook the Ford and Hiseley then rammed the Ford in the rear end seven or eight times.

Just which particular incident forced the Ford off the road into the ditch is in some dispute, though in our view whichever version is accepted the end result, namely, the Ford winding up in the ditch, was the direct result of Hiseley's operation of the Chrysler. David Maher testified in effect that the "Ford was finally knocked off the highway by contact between the Chrysler and the Ford." A city marshal who had given chase gave a slightly different version. He testified that he saw the Chrysler get along side the Ford and it "came right into the side of the car." However, according to the city marshal, the driver of the Ford did not lose control at that moment, and the Chrysler again fell in behind the Ford and started "bumping" the Ford once again. It was in this setting, according to this witness, that the driver of the Ford lost control. He described it thus: "* * * All I seen was the Ford, looks like it throwed it right straight up in the air * * *. I seen the Ford when it was airborne."

Gary Alverson, the driver of the Ford, testified that as he recalled it, he was forced off the road, stating that "they came up beside me and put their car against mine and pushed me off the road." He further testified that he applied his brakes, trying to slow down and avoid going off the road.

Some dispute arose as to whether the brakes were applied before or after the impact, or were applied both before and after. This we regard to be of minor significance. Both cars were proceeding at about 100 miles per hour and it is quite understandable that there were some differences of opinion as to the exact sequence of events. In this connection, a state highway patrolman testified as follows:

"* * * The Ford * * * skidded approximately 60 feet before impact and then traveled 130 feet going into a broad slide off the roadway and went airborne for approximately 111 feet. It rolled one half time in mid-air and came down on its top, and then rolled another one and one half times, landing back on its wheels through a distance of 100 feet."

As indicated, the trial court adopted the defendants' theory of the case, namely, that Keith Hiseley in his driving...