Readnour v. Commercial Standard Insurance Company
| Decision Date | 14 March 1958 |
| Docket Number | No. 5727.,5727. |
| Citation | 253 F.2d 907 |
| Parties | Marjorie READNOUR, Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY, a corporation, et al., Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James Z. Barker, Clinton, Okl., for appellant.
Duke Duvall, Oklahoma City, Okl. (Duvall & Head, Oklahoma City, Okl., on the brief), for appellees.
Before MURRAH, LEWIS and BREITENSTEIN, Circuit Judges.
This case reaches us for the second time.
Commerical Standard Insurance Company, hereinafter the Company, by action filed under the Federal Declaratory Judgments Act, 28 U.S.C.A. § 2201, seeks a declaration that its insured, one Smith, has breached the cooperation clause1 in a policy of automobile liability insurance and has thus relieved the Company of any obligation under the policy terms. The claim of Smith's failure to cooperate is found in his representation to the Company that he was not driving the insured vehicle at the time of an accident in which Smith and appellant Readnour were injured. Smith's representation in this regard was found by the first trial jury to have been false2 but no finding was made as to whether Smith's untrue statement was made with subjective knowledge of its falsity or whether the representation resulted from honest mistake. We reversed, stating:
On remand, this issue was submitted to a jury and the jury found for the present appellant thus concluding that the insured, Smith, although mistaken in his version of the accident, was not shown by a preponderance of the evidence to have deliberately misrepresented the facts. The verdict of the jury was set aside by the trial court which granted the insurance company's motion for directed verdict, the ruling having been reserved under Fed.Rules Civ.Proc.Rule 50, 28 U.S.C.A. This ruling is now assigned as error.
The court may not grant a motion for directed verdict upon even uncontroverted evidence where conflicting permissible inference may be drawn from the evidence. Burcham v. J. P. Stevens & Co., Inc., 4 Cir., 209 F.2d 35; Strawn v. Travelers Ins. Co., 5 Cir., 200 F.2d 778; Banks v. Associated Indemnity Corp., 5 Cir., 161 F.2d 305. The evidence adduced at the instant trial was much the same as that contained in the record on previous appeal which was summarized as follows:
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