United Services Auto. Ass'n v. Preferred Acc. Ins. Co.
| Decision Date | 18 July 1951 |
| Docket Number | No. 4236.,4236. |
| Citation | 190 F.2d 404 |
| Parties | UNITED SERVICES AUTOMOBILE ASS'N v. PREFERRED ACC. INS. CO. OF NEW YORK et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ben Franklin, Oklahoma City, Okl., and John W. Tyree, Lawton, Okl. (Satterfield, Franklin & Harmon, Oklahoma City, Okl., on the brief), for appellant.
Duke Duvall, Oklahoma City, Okl. (Dudley, Duvall & Dudley, Oklahoma City, Okl., on the brief), for appellees.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
The appeal in this case presents for determination the question which of two insurance companies must bear liability under its policy for a judgment rendered in the state court for personal injuries sustained in a traffic accident.
The Preferred Accident Insurance Company, hereinafter referred to as Preferred, issued its policy of automobile public liability insurance to the Right Honorable the Earl of Halifax, British Ambassador to the United States, and other insureds including specifically Colonel Philip Tower, a Lieutenant Colonel in the British Army under Certificate No. 93 which described a Studebaker automobile owned by him. The policy contained a provision which extended coverage to the insured while driving automobiles other than the one described in the policy and belonging to other persons but the extended coverage was restricted to the excess over any other valid and collectible insurance available to the insured. United Services Automobile Association, hereinafter referred to as United, issued to Lieutenant Colonel E. H. Almquist its policy of automobile public liability insurance covering a Ford automobile owned by him. Just before going overseas, Colonel Almquist transferred title and delivered possession of the Ford to his mother, Victoria Almquist. After some intervening correspondence, United issued a new or separate policy in which Victoria Almquist was named as the insured. The policy contained the standard omnibus clause providing that the word insured should include any person while using the automobile if used with the permission of the named insured. The policy was renewed from time to time and remained in force to and including the month of April, 1946. Colonel Almquist returned from overseas in August, 1945. Immediately thereafter his mother delivered the automobile back to him, but no formal transfer of title was executed and United was not advised of any change in status under the policy. And she did not have the automobile in her continued possession at any subsequent time.
Colonel Tower and Colonel Almquist were both stationed at Fort Sill, Oklahoma. In March, 1946, Colonel Tower borrowed the Ford automobile from Colonel Almquist for his own private purposes; and while using it for such purpose, the automobile and a motor vehicle driven by Horace R. Mantooth, hereinafter referred to as Mantooth, were involved in an accident. Mantooth filed in the state court an action against Colonel Tower for the recovery of damages for personal injury. The attorney for United filed on behalf of Colonel Tower a motion but he later withdrew from the case, and thereafter Preferred defended the action in the name of Colonel Tower. Judgment was rendered for Mantooth in the sum of $4,500.
After entry of the judgment in the state court, Preferred instituted this action against Mantooth seeking a declaratory judgment declaring and determining that it was not liable under its policy in connection with such judgment rendered in the state court. United was subsequently joined as an additional party defendant. The two companies appropriately joined issue as to which was liable under its policy for the judgment in the state court. The court determined that United was liable. Judgment was entered accordingly, and that company appealed.
United contends very earnestly that its policy did not cover the liability of Colonel Tower. The argument advanced in...
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