Cameron Mut. Ins. Co. v. Chitwood, No. 11741

• Court: Missouri Court of Appeals
• Writing for the Court: TITUS; GREENE, P. J., and FLANIGAN
• Citation: 609 S.W.2d 492
• Docket Number: No. 11741
• Decision Date: 11 December 1980
• Parties: CAMERON MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Respondent, v. Donald E. CHITWOOD, Louise Lundry, Bill Lundry and Denna Gail Lundry, Defendants, and MFA Mutual Insurance Company, a corporation, Defendant-Appellant.

Page 492

609 S.W.2d 492 17 A.L.R.4th 1314 CAMERON MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Respondent,
v.
Donald E. CHITWOOD, Louise Lundry, Bill Lundry and Denna
Gail Lundry, Defendants,
and
MFA Mutual Insurance Company, a corporation, Defendant-Appellant. No. 11741. Missouri Court of Appeals, Southern District, Division One. Dec. 11, 1980.

Page 493

Manuel Drumm, Drumm & Leible, Sikeston, for plaintiff-respondent.

James E. Spain, Briney, Welborn & Spain, P. C., Bloomfield, for defendant-appellant.

TITUS, Judge.

Shortly after midnight April 8, 1978, 17-year-old Donald Chitwood was driving his father's automobile near Bunker, Missouri, when it figured in a one-car accident. Donald and his family resided four miles south of Ellington, Missouri, which is some 30 miles from Bunker. Denna Lundry, a 14-year-old passenger in the vehicle, was injured. MFA Mutual Insurance Company (MFA) provided liability insurance coverage to the Chitwood automobile. Cameron Mutual Insurance Company (Cameron) insured an automobile belonging to Denna's mother and its policy, inter alia, provided uninsured motorists insurance. Cameron instituted this action for declaratory judgment. The trial court ruled that the involved vehicle was not an uninsured automobile at the time of the casualty and that MFA's policy did provide liability insurance coverage for the accident. MFA appealed.

Apropos of appellate review in court-tried cases, Rule 73.01-3(a), V.A.M.R., "is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron, 536 S.W.2d 30, 32 (1-2) (Mo.banc 1976). However, the duty of an appellate court to give due regard "to the opportunity of the trial court to have judged the credibility of witnesses" as provided in Rule 73.01-3(b), V.A.M.R., has little or no significance here for the entire testimony of witnesses on the concerned issue

Page 494

was proffered via depositions and transcribed recorded statements secured by an insurance representative. The trial judge in this case neither saw nor heard the witnesses and, consequently, had no better opportunity than we to judge of their credibility through appearance, demeanor and the nuances of tonal variations. Macalco, Inc. v. Gulf Ins. Co., 550 S.W.2d 883, 888(3) (Mo.App.1977).

The definition of persons insured in the omnibus clause of MFA's policy was as follows: "(a) With respect to the described automobile, (1) the named insured and, if an individual, his spouse, (2) any other person using such automobile with the permission of the named insured or his spouse, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission ...." (Emphasis supplied). As regards that portion of the policy emphasized, supra, which is an actual operation omnibus clause, it was stated in Allstate Ins. Co. v. Hartford Accident & Indem. Co., 486 S.W.2d 38, 43(1, 2) (Mo.App.1972), and repeated in Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751, 754 (Mo.App.1977) (omitting citations), "The terms 'use' and 'operation' are not synonymous .... 'For the "use" of an automobile by an individual involves its employment for some purpose or object of the user while its "operation" by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle.' Thus, ... 'use' is a term of much broader scope and application than 'operate' or 'drive,' and conversely the latter terms are of narrower and more restricted meaning. Although one who operates an automobile obviously uses it, one can use an automobile without operating it." Ergo, the specific question for resolution is, considering the restrictive meaning of "actual operation," whether Donald, at the time of the accident, was operating MFA's insured vehicle within the scope of the permission granted by his father.

Although Donald started driving when he was 16 years old, or some 16 months prior to the accident, he did not have unfettered use of his father's car. In fact, he had been permitted to drive the automobile only 10 or 15 times before the accident and "(m)ost of the time I was just going to the store." Donald's father recounted that Donald "never used it over three or four times for an occasion like this," i. e., to drive for his own pleasure instead of specified errand purposes. Donald had no keys to the automobile and had to ask his parents' permission each time he used it. Before the accident in question, Donald had never driven the vehicle beyond the city limits of Ellington because his father "just didn't want me to leave the city limits of Ellington." Donald said he was given the same admonition when he was reluctantly given permission to take the automobile on the occasion in question. Also, Donald was told to be...