Hazelrigg v. American Fidelity & Casualty Company
| Decision Date | 07 February 1957 |
| Docket Number | No. 5484.,5484. |
| Citation | 241 F.2d 871 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | S. R. HAZELRIGG, Appellant, v. AMERICAN FIDELITY & CASUALTY COMPANY, a corporation, Appellee. |
Gus Rinehart, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl., were with him on the brief), for appellant.
Welcome D. Pierson, Oklahoma City, Okl., for appellee.
Before HUXMAN, PICKETT and LEWIS, Circuit Judges.
This is the second appearance of this case in our Court.1 The facts out of which the case arose are these. The American Fidelity and Casualty Company issued an automobile liability policy of insurance to S. R. Hazelrigg, insuring him against liability because of the operation of the insured vehicle to the maximum amount of $50,000. One of Hazelrigg's insured trucks was involved in a collision in which the driver of the other vehicle was killed. A damage action was filed against Hazelrigg in the State Court in which a judgment was rendered against him in the sum of $79,375. The action was defended by the Insurance Company. On a motion for a new trial the trial court concluded that the judgment was excessive to the extent of $19,375 and required a remittitur of that amount as an alternative to granting a new trial. A remittitur was filed and judgment was entered for $60,000. Thereafter, the plaintiff judgment creditor offered to settle the judgment for $50,000. Hazelrigg demanded that the Insurance Company settle but it insisted on taking an appeal to the Supreme Court of Oklahoma. The appeal was unsuccessful and the judgment for $60,000 was affirmed.
Thereafter, Hazelrigg instituted this declaratory judgment action in the United States District Court for the Western District of Oklahoma for a declaratory judgment declaring that the Insurance Company was liable for the full judgment of $60,000, because it acted in bad faith in refusing to settle for $50,000 and in insisting on taking an appeal to the Supreme Court. A motion for summary judgment by the insurance company was sustained and an appropriate judgment was entered. The trial court held as a matter of law that the complaint was insufficient to charge bad faith and entered summary judgment for the insurance company. On appeal we held that whether the insurance company was guilty of bad faith presented an issue of fact which could be determined only after a trial and that the trial court erred in holding as a matter of law there was no showing of bad faith. We accordingly reversed and remanded the case for trial.
On remand appellant's request for a jury trial was refused and the case was tried by the court. It made findings of fact finding that the insurance company had acted in good faith in appealing the case to the Oklahoma Supreme Court and concluded as a matter of law that it was not liable to Hazelrigg for the judgment in excess of the maximum coverage under the policy. An appropriate judgment was entered on these findings and conclusions and this appeal followed.
Two grounds are urged for reversal. They are (1) the court erred in denying appellant's request for a jury trial, and (2) the judgment of the court is unsupported by substantial evidence in the record. Appellant concedes that he did not make a timely request for a jury trial as required by Rule 38 Fed. Rules Civ.Proc., 28 U.S.C.A. and that therefore he was not entitled to a jury as a matter of right. He contends, however, that the trial court abused its discretion in denying his belated request for such a trial. When the case was first called for trial both parties waived a jury and agreed to try the case to the court. When on appeal the court's first judgment was reversed, Hazelrigg for the first time requested a jury trial. We think a jury trial might well have been granted by the court. The question for determination is a fact question. There was nothing difficult about it which a jury could not determine. But that in itself is not sufficient to warrant a reversal by us because of the court's denial of the request for a jury trial. Under all the decisions where the...
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