Opinion
March 21, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Duane O. Littell, Denver, for plaintiff-appellee.
Richard T. Goold, Denver, for defendants-appellants Stockwell, Kolakowski, Frye and Kelley.
PIERCE, Judge.
This is an appeal of an action for declaratory judgment brought by Western Casualty & Surety Company (Western Casualty) for determination of its liability to defendants and defendants-appellants under an automobile accident insurance policy issued by it to Gary Page.
In December 1969, an automobile owned by Gary Page and driven by his brother-in-law, Robert Cordova, was involved in a one-car accident. There were four other passengers, all under the age of 16, in the vehicle at the time. Subsequent to the accident, individual suits for damages were commenced by representatives of the passengers and others against Robert Cordova, Gary Page, and Jeannette Page, his wife. After the commencement of these suits, the instant declaratory judgment action was initiated.
Under the policy in question, a condition precedent to the insurer's liability was that the actual use of the insured automobile at the time of an accident or injury be by the named insured, Gary Page, his spouse, or with the permission of either.
Subsequent to a full hearing, the court found that no permission, either express or implied, has been given to Robert Cordova by Gary or Jeannette Page to use the vehicle at the time of the accident. The court held that, under the provisions of the policy, Robert Cordova was not entitled to coverage or a defense of the lawsuit and that none of the passengers in the vehicle were entitled to medical payments. Gary Page and Jeannette Page were found to be covered by the terms of the policy.
It is defendants-appellants' contention that the evidence does not support the trial court's findings. We disagree.
The direct testimony of Gary Page established that he did not give Cordova permission to drive the vehicle. Testimony regarding surrounding circumstances and statements by Jeannette Page amply support the court's conclusion that Cordova was not given permission to drive the vehicle by Mrs. Page. In review of the record, we note that there is a substantial dispute as to the credibility of Jeannette Page's testimony. The issue of her credibility, however, was resolved by the court in favor of Western Casualty. As our Supreme Court has repeatedly stated, determinations as to the credibility of witnesses, sufficiency, probative effect and weight of evidence and inferences and conclusions to be drawn therefrom, are within the province of the trial court and will not be disturbed on review unless manifestly erroneous or actuated by passion or prejudice. Broncucia v. McGee, Colo., 475 P.2d 336; Brenaman v. Willis, 136 Colo. 53, 314 P.2d 691. The trial court's findings in the case at hand are adequately supported by the evidence and we will not substitute our judgment for that of the trial court.
Appellants' further assignments of error are found to be without merit.
Judgment affirmed.
DWYER and SMITH, JJ., concur.