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 statements
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,
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,
Nor does appellee stand any better on its position that though the judgment in the declaratory suit must be reversed, the judgment in the damage suit must be affirmed because when it was entered, the judgment in the declaratory suit stood unappealed and unreversed and, pleaded as res judicata, it entitled appellee to a judgment in the second suit. For while there is some difference of opinion under the authorities as to whether a judgment which is in process of being appealed, may be pleaded as res judicata, 34 C.J. 898, Section 1307, and notes, it is settled law that when it is brought to the attention of the appellate court on the appeal of the second judgment that the first judgment has been reversed, that court will reverse the second judgment. Ransom v. City of Pierre, 8 Cir., 101 F. 665, especially will this be done where the court to which the second judgment is appealed, is the court that reversed the first judgment. Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713, and more especially will it be done where as here, the two suits were tried, the two judgments entered in the same court in causes, proceeding pari passu, and the appeals were heard and submitted in the same appellate court at the same time. The judgments on both appeals are reversed and the causes are remanded for further and not inconsistent proceedings.
Reversed and remanded.
"I had the privilege of using the car any time I wanted to. I didn't say that I had her consent. I kept the keys at all times, and I used the car when I wanted to.
"Q. With her consent? A. I hadn't asked her.
"Q. Did she object to it? A. No, sir, she knew of my using it.
"Q. She knew that you were using the car? A. Yes, sir.
"Q. She knew that you carried the keys? A. Yes, sir.
"Q. She never objected to your making use of it? A. She told me I could use it to go home and to dances and to ride my friends sometimes."
The District Judge excluded this evidence and refused to consider it in making up his judgment, whereupon appellant defendant moved for a continuance in order to secure Jones' affidavit. The motion was denied and the cause proceeded to judgment. On a motion for new trial defendant offered the affidavit of Jones in which in addition to what he had testified to, he said: "I had the privilege of using the car at any time I wanted to and she knew I used it and she never at any time made any objections to my using it. I have used her car many times to go to dances and sometimes I told her before I went that I was going to use the car. On other occasions I told her about using her car for personal pleasure and she never objected or protested in any way."
In No. 9443, plaintiff offered this affidavit.