170 F.2d 759 (10th Cir. 1948), 3645, Maryland Cas. Co. v. National Mut. Cas. Co. of Tulsa, Oklahoma

Docket Nº:3645.
Citation:170 F.2d 759
Party Name:MARYLAND CASUALTY CO. v. NATIONAL MUT. CASUALTY CO. of TULSA, OKLAHOMA et al.
Case Date:November 05, 1948
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 759

170 F.2d 759 (10th Cir. 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, No. (Payl 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 demurer 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,

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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...

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