Duff v. Alliance Mutual Casualty Company

• Decision Date: 07 November 1961
• Docket Number: No. 6723.,6723.
• Citation: 296 F.2d 506
• Parties: Terry Lynn DUFF; Rose Ella Weese, mother and next friend of Dennis Wayne Weese, a minor; Rose Ella Weese, an individual; and Duane Henry Weese, Costello Means, father and next of kin of Merle C. Means, deceased; and Max McCall, guardian of the estate of Jimmy Shideler, a minor, Appellants, v. ALLIANCE MUTUAL CASUALTY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

296 F.2d 506 (1961)

Terry Lynn DUFF; Rose Ella Weese, mother and next friend of Dennis Wayne Weese, a minor; Rose Ella Weese, an individual; and Duane Henry Weese, Costello Means, father and next of kin of Merle C. Means, deceased; and Max McCall, guardian of the estate of Jimmy Shideler, a minor, Appellants, v. ALLIANCE MUTUAL CASUALTY COMPANY, a corporation, Appellee.

No. 6723.

United States Court of Appeals Tenth Circuit.

November 7, 1961.

Howard K. Berry, Sr., Oklahoma City, Okl. (Collins, Moore & Sellers, Sapulpa, Okl., Green & Feldman, Tulsa, Okl., Jack B. Sellers, Drumright, Okl., Charles A. Shadid, Oklahoma City, Okl., Wallace & Wallace, Sapulpa, Okl., Berry & Berry, Oklahoma City, Okl., were with him on the brief), for appellants.

Dan A. Rogers, Tulsa, Okl. (Philip N. Landa, Tulsa, Okl., was with him on the brief), for appellee.

Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.

LEWIS, Circuit Judge.

This is an action brought by the Alliance Mutual Casualty Company under the Declaratory Judgment Act, 28 U.S. C.A. § 2201, to determine that company's rights and duties under a policy of automobile insurance issued to one Marvin O'Kelley as the name insured. The determinative question is whether Terry Lynn Duff, driver of the insured vehicle at the time of an accident giving rise to claims of liability brought by the other appellants, was driving the insured car with the implied permission of the named insured, Marvin O'Kelley. The trial court held that Duff's use of the vehicle was without the permission of the named insured and that the company had no contractual obligation to defend the actions pending against Duff. This appeal challenges such finding and our review is limited to a determination of whether the record indicates the finding to be clearly erroneous. Rule 52, F.R.Civ.P., 28 U.S. C.A.

The subject policy designates as insureds under the contract:

(1) The named insured and any resident of the same household,

(2) Any other person using such automobile, provided the actual use thereof is with the permission of the named insured.

The insured vehicle was a 1955 Pontiac and was one of two automobiles available for family use in the O'Kelley household. On February 21, 1960, the Pontiac was driven to work by Pete O'Kelley, a son of the named insured. It is undisputed that Pete had authority to take the car as need required and that his use was permissive upon the particular occasion. While at work, Pete loaned the vehicle to Duff who, as indicated, was involved in an accident. The parties agree that Duff had the actual and unqualified permission of the son Pete to drive the car but did not have the actual permission of the named insured, Marvin O'Kelley. Appellants contend that the intimate relationship between the O'Kelley and Duff families, viewed in the light of the Oklahoma Safety Responsibility Act, 47 Okl.St.Ann. §§ 501-542, makes a finding of implied consent mandatory under the evidence and requires a reversal of the trial court's judgment.

For at least five or six years prior to the subject incident Duff and Pete O'Kelley had been intimate friends, neighbors and schoolmates. They had, to a great degree, enjoyed the free run of each other's homes and had shared the many associations of teen-age boys. After obtaining their drivers' licenses at age 16 they were each allowed use of their respective family cars and each boy had allowed the other to drive upon frequent occasions. The close friendship continued through the years as evidenced by the fact that Pete O'Kelley was best man at Duff's wedding.

On February 21, 1960, Duff was home from a college that he was attending at Stillwater, Oklahoma. On that afternoon he visited at work with Pete O'Kelley and told Pete that his ride back to Stillwater had disappointed him and asked to borrow the O'Kelley car to hunt up another ride. Pete twice loaned him the car for that purpose. During the second period that Duff was in possession of the car he was involved in the accident premising the controversy.

The testimony of Marvin O'Kelley, owner of the car and named insured, forms the basis for the trial court's finding. Mr. O'Kelley had never discussed with his son Pete the matter of allowing others to drive his car. He had no knowledge of any instance when Pete had loaned the car¹ and did...