151 F.2d 772 (10th Cir. 1945), 3162, Maryland Cas. Co. v. Morrison

Docket Nº:3162.
Citation:151 F.2d 772
Case Date:November 05, 1945
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 772

151 F.2d 772 (10th Cir. 1945)




No. 3162.

United States Court of Appeals, Tenth Circuit.

November 5, 1945

Rehearing Denied Dec. 10, 1945.

Where automobile public liability policy covered damage caused by accident and arising out of ownership, maintenance, or use of insured motor vehicle, but excepting accidents arising out of explosion of butane gas or other volatile gases, rule of proximate cause did not control liability of insurer, and insurer was not liable for injuries and damage to person and property directly resulting from flying particles of tank and truck after explosion of butane gas, regardless of whether explosion was caused by hostile or friendly fire.

Page 773

Coleman Hayes, of Oklahoma City, Okl. (Ames, Monnet, Hayes & Brown, of Oklahoma City, Okl., on the brief), for appellant.

B. H. Carey, of Oklahoma City, Okl. (S. J. Clay, of Oklahoma City, Okl., J. A. Rinehart, of El Reno, Okl., Leslie D. Ringer, Miley, Hoffman, France & Johnson, and Cantrell, Carey & McCloud, all of Oklahoma City, Okl., R. H. Morgan, of Watonga, Okl., Rittenhouse, Webster, Hanson & Rittenhouse and William R. Herring, all of Oklahoma City, Okl., on the brief), for appellees.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The appellant, Maryland Casualty Company, brought this suit for a declaration of its rights and liabilities under an automobile public liability insurance policy issued to one of the appellees, Ward Morrison, Jr., by the terms of which it agreed to pay all damages to persons or property 'caused by accident and arising out of the ownership, maintenance or use of' certain designated vehicles, subject however to the provisions of an endorsement which provided: 'It is agreed that such insurance as is afforded by the policy does not apply to accidents arising out of explosion of butane gas and other volatile gases.'

In addition to the insured Morrison, and his employee Hudson, the complaint named as defendants third parties who are asserting claims against the insured and Hudson by reason of the alleged negligent operation of one of the vehicles covered by the policy, and other persons similarly situated have intervened. The complaint pleaded the policy and alleged that on March 31, 1944, one of the insured's trucks, while hauling a large quantity of butane and propane gas, caught fire and exploded, causing damage to persons and property; that certain named defendants have either sued or threatened to sue the insured for damages alleged to have been sustained by the negligent operation of the insured truck. It was alleged that according to the contention of insured, the complainant as insurer under the policy, was obligated to defend against the claims for damages, and to indemnify or pay any losses arising out of the negligent operation of the truck, but that since the claimed damages arose out of an explosion of butane gas, they are not within the coverage of the policy, the insurer is not liable therefor, and prays for a judgment declaring its nonliability under the policy...

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