United States Fidelity and Guaranty Company, a Corporation v. Roscoe B. Smith and Ida Smith, Ronald G. Callahan, Harold L. Smith and Ruth Smith

Appellant commenced this action to obtain a judgment declaring that appellee Callahan was not insured by appellant at the time and place of an accident which occurred on March 28, 1957. Jurisdiction is based upon diversity of citizenship. The District Court, sitting without a jury, concluded that Callahan was insured and entered judgment in favor of appellees. This appeal is taken from that judgment.

If Callahan was insured, it was under the terms of a policy issued by appellant to appellee Roscoe B. Smith. The omnibus clause of that policy extended coverage to “any person while using an owned automobile * * * provided the actual use of the automobile is by the Named Insured or with his permission.” Appellant contends that there is no evidence from which the District Court might have found that, at the time and place of the accident, the “actual use of the automobile” by Callahan was with Smith’s permission.

Roscoe B. Smith and Ida Smith, his wife, own and operate a laundry and dry cleaning business in Phoenix, Arizona. On March 8, 1957, appellant issued an insurance policy to R. B. Smith covering a Willys station wagon owned by him. The policy contained the omnibus clause…