Maryland Casualty Co. v. National Mut. Casualty Co., 3645.

• Decision Date: 05 November 1948
• Docket Number: No. 3645.,3645.
• Citation: 170 F.2d 759
• Parties: MARYLAND CASUALTY CO. v. NATIONAL MUT. CASUALTY CO. OF TULSA, OKLAHOMA et al.
• Court: U.S. Court of Appeals — Tenth Circuit

170 F.2d 759 (1948)

MARYLAND CASUALTY CO. v. NATIONAL MUT. CASUALTY CO. OF TULSA, OKLAHOMA et al.

No. 3645.

United States Court of Appeals Tenth Circuit.

November 5, 1948.

Wm. E. Kemp, of Kansas City, Mo. (Paul G. Koontz, of Kansas City, Mo., Willard L. Phillips, of Kansas City, Kan., and E. H. McVey, of Kansas City, Mo., on the brief), for appellant.

Barton E. Griffith, of Topeka, Kan., for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

The Maryland Casualty Company, herein called Maryland, brought this action under the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, against the National Mutual Casualty Company, herein called National, and Donald J. Eickman, for a declaration of liability against National. At the conclusion of Maryland's evidence, the trial court entered a judgment sustaining National's demurrer to the evidence and its motion to dismiss on the ground that it had failed to make a case entitling it to any relief. Maryland has appealed.

On April 11, 1946, Maryland issued its liability policy of insurance to Melvin W. Crouse, operating a trucking business at Chester, Nebraska, covering the truck in question. The policy contained the usual provision obligating Maryland to pay all sums within the maximum coverage therein which the insured became obligated to pay by reason of liability imposed upon him by law resulting from the operation of the truck in his business. The policy provided that the word "Insured" means Crouse and any person using the truck with his permission, unless otherwise stated. It also contained these provisions: "13. Other Insurance. Coverages A and B. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss * * *"

Eickman, a resident of Nebraska, was engaged in selling and servicing artificial gas systems. He owned a Chevrolet truck which he used in his business in making trips in Kansas. He held a license from the Kansas Corporation Commission as a "Private Motor Carrier." In compliance with applicable Kansas statutory provisions, he filed with the Corporation Commission an appropriate liability insurance policy issued by National. The general coverage under this policy and the liability provisions thereof are similar to those in the Maryland policy covering Crouse. The controversy in this litigation centers around the following provisions of the National policy. "It is further understood and agreed that The company waives a description of the motor vehicles, trailers or semitrailers insured hereunder and the policy is hereby amended and extended so as to cover any and all motor vehicles, trailers and semitrailers operated or used by the assured pursuant to the certificate, permit or license issued by the State Corporation Commission of Kansas."

The policy contained a further endorsement entitled "Reimbusement Agreement" which, in substance, required the insured to reimburse the company for any payment made by it on account of any loss, damage, claim or suit involving a breach of the terms of the policy or arising out of the ownership or use of any motor vehicle not described in the policy and which payment the company would not have been obligated to make but for the provisions of the State Regulatory Commission endorsement.

The evidence shows that in August, 1946, and again in October, 1946, Eickman employed Crouse to transport supplies for him from Wichita, Kansas, to his place of business in Nebraska. For these trips Eickman paid the established transportation charge which in each instance was $40. In November, 1946, he again engaged Crouse to transport supplies for him from Wichita to his place of business in Nebraska. When the date for this trip arrived, both Crouse and the driver of his truck were busy and it was...