Till v. Hartford Accident & Indemnity Co., 2326.

Decision Date20 January 1942
Docket NumberNo. 2326.,2326.
Citation124 F.2d 405
PartiesTILL et al. v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
CourtU.S. Court of Appeals — Tenth Circuit

A. L. Morrison, of El Reno, Okl., and Howard K. Berry, of Oklahoma City, Okl. (Ralph H. Schaller and W. P. Morrison, both of Oklahoma City, Okl., Lucius Babcock, Jr., of El Reno, Okl., and Pierce & Rucker, of Oklahoma City, Okl., on the brief), for appellants.

Walter D. Hanson, of Oklahoma City, Okl. (F. A. Rittenhouse and John F. Webster, both of Oklahoma City, Okl., on the brief), for appellees.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

On December 29, 1939, Hartford Accident and Indemnity Company1 issued to Lillie Small its policy of liability insurance. It covered two automobiles, one being a 1940 Mercury Tudor Sedan. Under the policy, Hartford agreed to pay on behalf of the insured all sums which insured should become obligated to pay by reason of liability imposed upon her by law for bodily injuries, death resulting therefrom, and injury to or destruction of property, arising out of the ownership, maintenance, or use of the Mercury, and to defend in the name and on behalf of insured any suit against the insured alleging such injury, death, or destruction and seeking damages on account thereof, even though such suit be groundless, false, or fraudulent.

The policy provided:

"The * * * word `insured' wherever used in * * * this policy, * * * includes not only the named insured but also any person while using the automobile * * * provided * * * the actual use is with the permission of the named insured."

Frank Woodward, Jr., is the grandson of Small and was living with her on January 3, 1940. On that day, while the Mercury covered by the policy was being driven by him, a collision occurred between it and a Ford Coach owned by Les Till and being operated by Alvin Ice. Jack A. Rose and Howard W. Willis, who were passengers in the Mercury, were killed. Herman Justice and Howard Shull, who were passengers in the Mercury, were injured. Les Till, who was a passenger in the Ford Coach, was killed. Ice was injured. Actions were brought in the district court of Canadian County, Oklahoma, against Small and Woodward by Herman Justice, a minor, through his father and next friend, Homer Justice, by Shull, a minor, through his sister and next friend, Mrs. Claude Bowen, and by Ice, to recover damages for personal injuries, by Martha Till to recover for the death of Les Till, and by Lois M. King to recover damages for the death of Rose. In each of the actions it was alleged that the Mercury was being operated by Woodward, with the knowledge and permission of Small and on her behalf. Shull recovered judgment against Small and Woodward for $3,557.20, from which Small appealed to the Supreme Court of Oklahoma. Martha Till recovered judgment against Woodward in the sum of $2,500. In the Till action the jury returned a verdict in favor of Small.

On June 19, 1940, Hartford commenced this action against Small, Woodward, Martha Till, Ice, King, Herman Justice, a minor, Homer Justice, father and next friend of Herman Justice, Shull, a minor, and Bowen, sister and next friend of Shull. In its complaint, Hartford alleged that it is a corporation organized under the laws of the state of Connecticut and duly authorized to transact business in the state of Oklahoma; that Small, Woodward, and Martha Till are citizens and residents of Canadian County, Oklahoma; that Ice is a citizen and resident of Garfield County, Oklahoma; that King is a citizen and resident of Oklahoma County, Oklahoma; that Herman Justice and Homer Justice are citizens and residents of Marshall County, Oklahoma; and that Shull and Bowen are citizens and residents of Carter County, Oklahoma.

It alleged the issuance of the policy and attached a copy to the complaint as an exhibit. It further alleged the accident, the death of or injuries to the parties as above set out, the bringing of the suits in the district court of Canadian County, Oklahoma, and the judgments obtained by Shull and Martha Till. It further alleged that following the institution of the actions in the state court it was conceded by Small and Woodward that at the time of the accident the Mercury was being operated by Woodward without the permission, express or implied, of Small and not upon any mission or errand on her behalf, and that Hartford under the policy was neither obligated to defend such suits in behalf of Woodward nor to pay any judgment rendered against him, and that by reason thereof, Hartford refused to defend such actions in behalf of Woodward.

It further alleged "that the defendants, and each of them" in the instant case are contending that Hartford, under the terms of the policy, is obligated to pay "up to the amount of the policy" any judgments rendered or which may be rendered against Woodward in the state court actions.

It further alleged that Shull and Martha Till intended to institute garnishment proceedings against Hartford on their judgments and that the other plaintiffs in the state court actions will institute separate garnishment proceedings against Hartford in the event they recover judgments against Woodward.

Hartford prayed for a declaratory judgment adjudging that it is under no duty or obligation to appear and defend such suits on behalf of Woodward, that at the time and place of the accident, Woodward was not operating the Mercury with the permission of Small, and that the collision and accident are not covered by the policy. It also prayed for an injunction restraining Shull, Bowen, and Martha Till from prosecuting any action in garnishment, or otherwise, until the determination of the instant case.

Martha Till filed a separate answer and cross complaint in which she alleged that the Mercury was being driven at the time of the accident with the express or implied consent of Small; that Woodward was an additional assured under the policy; and that no controversy existed between Hartford and Small and Woodward. She also set up the judgment recovered in the state court and prayed for judgment thereon against Hartford.

Shull and Bowen, as next friend of Shull, filed a joint answer and counterclaim in which they denied that the operation of the Mercury was without the permission, express or implied, of Small and set up the Shull judgment in the state court and prayed for judgment thereon against Hartford.

Herman Justice and Homer Justice, as next friend of Herman Justice, Ice, and King filed separate answers in which they denied that the Mercury was being operated at the time of the accident by Woodward without the permission, express or implied, of Small.

Small filed an answer and a counterclaim in which she alleged that under the terms of the policy, Hartford is obligated to defend her in the state court actions and to pay the expenses in connection therewith, to pay the judgment rendered in the Shull action if that judgment becomes final against her, and to pay any judgments which may be rendered against her within the limits of the policy in actions arising out of the accident. She further alleged that Woodward was not acting as her agent, servant, or employee, nor engaged upon any mission for her at the time of the accident, and that she is entitled to judgment of nonliability as to Ice, King, Herman Justice, and Homer Justice, as next friend of Herman Justice.

She prayed for judgment against Hartford adjudging it to be obligated under the policy to defend any present or future...

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