Edgar v. Travelers Insurance Company

• Decision Date: 09 November 1965
• Docket Number: No. 17961.,17961.
• Citation: 351 F.2d 690
• Parties: Raymond EDGAR et al., Appellants, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

351 F.2d 690 (1965)

Raymond EDGAR et al., Appellants, v. The TRAVELERS INSURANCE COMPANY, Appellee.

No. 17961.

United States Court of Appeals Eighth Circuit.

October 27, 1965.

Rehearing Denied November 9, 1965.

Raymond R. Roberts, of Roberts & Roberts, Farmington, Mo., for appellants.

Samuel Richeson, of Dearing, Richeson, Weier & Roberts, Hillsboro, Mo., for appellee.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and MEREDITH, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Plaintiff, The Travelers Insurance Company, brought this action seeking a declaratory judgment that Leroy Kinney was not covered by the automobile liability policy plaintiff had issued to Shumake Sales and Service for damages caused Raymond Edgar, Marie Edgar, and their minor children, as a result of a collision which occurred about 1:00 p. m. on December 25, 1963, between the Edgar automobile and the automobile covered in the Shumake policy, while it was being operated by Leroy Kinney. Kinney and the Edgars were named defendants. Kinney filed no answer but was called as a witness at the trial. The Edgars answered and sought a declaration of liability on the part of the plaintiff for the damages which they suffered. Jurisdiction, based on diversity of citizenship and the jurisdictional amount, is established.

It is stipulated that the automobile liability policy issued Shumake by the plaintiff was in force at the time of the accident and that the policy covered the 1956 Chevrolet automobile driven by Kinney at the time of the accident. It is also established that Kinney is not a named insured.

The issue in this case is whether Leroy Kinney's use of the automobile at the time of the accident is covered by the omnibus clause of the policy. Such clause, so far as here material, reads:

"Each of the following is an insured * * *:

* * * * * *

"(3) * * * any of the following persons while using such automobile with the permission of the named insured, providing such person\'s actual operation * * * is within the scope of such permission:

"(a) any employee, * * *

"(b) any other person * * *."

This case was tried to the court without a jury. The only issue in controversy is whether Kinney was a permissive user of the insured automobile at the time of the December 25 accident. The court, after discussing the evidence, in its memorandum opinion states:

"No where does the record reveal that Shumake expressly or impliedly by any language or conduct, conferred permission on Kinney to use the car after returning it on Christmas morning. Quite to the contrary, Kinney had specific permission and instructions only to use it to drive home on the evening of the 24th and to return it that next morning.

"Therefore the only conclusion that can be drawn is that Kinney was not using the car with the permission of a named insured under the policy at the time of the accident in question and therefore was not a permissive user within the terms of plaintiff\'s policy. Varble v. Stanley, Mo.App., 306 S.W.2d 662. Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605, M. F. A. Insurance Company v. Lawson, Mo.App., 336 S.W.2d 123."

The issue of whether permission to use a vehicle exists is usually one of fact. Rule 52(a), Fed.R.Civ.P., provides that findings of fact made by the trial court shall not be set aside unless clearly erroneous. Credibility issues are to be resolved by the trial court. Where different inferences may reasonably be drawn from the evidence, this court will not substitute its judgment for that of the trial court. Shoppers Fair of Arkansas, Inc. v. Sanders Co., 8 Cir., 328 F.2d 496, 499; Barryhill v. United States, 8 Cir., 300 F.2d 690, 694.

When the evidence is viewed in the light most favorable to the plaintiff as the prevailing party, we are satisfied that the court was warranted in finding that no permission was granted to Kinney, either express or implied, to use the insured automobile at the time of the accident. Kinney obtained permission to use the car on the night of December 24 to pick up some presents and to attend a family Christmas party, with instructions to return the car that night. When he returned the car about 10:00 p. m. that evening, Shumake told him he could take the car home that night but to return it early the next morning. Kinney drove the car back to Shumake's about 10:30 the next morning and found Shumake was not at home. The trial court determined that permission ended when the car was so returned to Shumake's premises.

Kinney had worked for Shumake and had means of access to Shumake's garage located upon the premises and could have...