Whitaker v. Coleman, No. 9443

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, HOLMES, and McCORD, Circuit
• Citation: 115 F.2d 305
• Parties: WHITAKER v. COLEMAN. SAME v. ÆTNA CASUALTY & SURETY CO.
• Docket Number: 9444.,No. 9443
• Decision Date: 06 November 1940

115 F.2d 305 (1940)

WHITAKER
v.
COLEMAN.
SAME
v.
ÆTNA CASUALTY & SURETY CO.

Nos. 9443, 9444.

Circuit Court of Appeals, Fifth Circuit.

November 6, 1940.

William C. Sugg, of Nashville, Tenn., for appellant.

115 F.2d 306

C. L. Watts and Addison White, both of Huntsville, Ala., for appellees.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The first of the above numbered causes was a suit brought against the owner and the driver of an automobile for death damages. The second was a suit for declaratory judgment, that it was not liable as insurer, brought by the insurer on a policy covering the owner as named insured and "any person while using the automobile * * * with the permission of the named insured." Appellant was plaintiff in the first, defendant in the second, of the above numbered causes, and in both cases he seasonably made his demand for a jury. The insurance company as the plaintiff in the declaratory judgment suit and as manager of the defense in the damage suit, invoked the summary procedure of Rule 56, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, and after a hearing in which plaintiff proffered statements¹ of the driver, on the tendered issue that he was an "insured", obtained a summary judgment first in the declaratory judgment suit in favor of itself and next in the damage suit in favor of the defendant owner.

Appealing in each case from the summary judgment against him, appellant is here insisting as to each that there was a genuine issue as to a material fact whether the driver was an "insured" within the policy terms,² and that he has been deprived of his right of trial by jury. We think it clear that appellant has been so deprived and that the judgments must be reversed because he has. The invoked procedure, valuable as it is for striking through sham claims and defences which stand in the way of a direct approach to the truth of a case, was not intended to, it cannot deprive a litigant of, or at all encroach upon, his right to a jury trial.

Judges in giving its flexible provisions effect must do so with this essential limitation constantly in mind. To proceed to summary judgment it is not sufficient then that the judge may not credit testimony proffered on a tendered issue. It must appear that there is no substantial evidence on it, that is, either that the tendered evidence is in its nature too incredible to be accepted by reasonable minds, or that conceding its truth, it is without legal probative force. Testing appellant's offer of proof by this rule, it plainly appears that an issue on which he is entitled to a jury trial has been summarily determined against him.

In American Casualty Company v. Windham, 5 Cir., 107 F.2d 88, 90 (following the rule carefully set out in Columbia Casualty Co. v. Lyle, 5 Cir., 81 F.2d 281,

115 F.2d 307

and Standard Accident Insurance Co. v. Rivet, 5 Cir., 89 F.2d 74, in both of which coverage was denied because the use was in violation of express prohibition), we have recently said: "Permission to use a car may be implied in the absence of express prohibition."³ The evidence in this case, if Jones' statements...