400 F2d 852 General Insurance Company of America v. C Thielepape

400 F.2d 852

Fred C. THIELEPAPE, by next friend, et al., Appellees.

No. 25726.

United States Court of Appeals Fifth Circuit.

Sept. 30, 1968.

Edward P. Fahey, Groce, Hebdon, Fahey & Smith, San Antonio, Tex., for appellant.

L. Tonnett Byrd, Kuykendall & Kuykendall, Austin, Tex., for appellee Fred C. Thielepape.

Byrd, Davis, Eisenberg & Clark, Austin, Tex., for appellees Lillian G. Bush and Otis L. Bush.

Before GEWIN, PHILLIPS* and GOLDBERG, Circuit Judges.


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This action against the appellant insurer was brought by Fred Thielepape to enforce the terms of a family automobile liability insurance policy issued to Thielepape's father. The United States District Court for the Western District of Texas denied the insurer's motion for summary judgment, proceeded to a hearing and rendered judgment for Thielepape. We affirm.


The issue presented to the district court was whether Thielepape was covered under the policy's 'non-owned automobile' provision which extends coverage to any family member driving a non-owned automobile if the driver 'reasonably believed' his use of the automobile was with the permission of the owner.1 The appellant contends that the findings of the District Court are clearly erroneous.


We have examined the record in light of the appellant's contentions and are unable to conclude that the trial judge committed error. Our conclusion is influenced in part by the highly subjective nature of the issue confronting the lower court in determining whether Thielepape reasonably believed he was driving the car with the permission of the owner. In a case of this nature the appearance and demeanor of the witnesses is of particular significance.


Judgment affirmed.


Judge Harry Phillips of the Sixth Circuit, sitting by designation


The policy provided coverage as follows:

(b) with respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission. * * *