PENNSYLVANIA THRESHERMEN & F. MUT. CI CO. v. Harrill
| Decision Date | 08 August 1952 |
| Docket Number | Civ. A. No. 1098. |
| Citation | 106 F. Supp. 332 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | PENNSYLVANIA THRESHERMEN & FARMERS' MUT. CAS. INS. CO. v. HARRILL et al. |
Fred D. Hamrick, Jr., Rutherfordton, N. C., for defendants.
This cause coming on to be heard and being heard before me at Asheville, on Wednesday, July 16, 1952; and it appearing to the Court that all parties have waived a jury trial and have agreed that the Court may hear and determine this cause upon the admission contained in the pleadings which were introduced in evidence, upon the stipulation of facts agreed to and entered in the record in this cause at the hearing, and upon the evidence introduced at said hearing.
From all of the evidence introduced and admissions made at the hearing of this cause on Wednesday, July 16, 1952, the Court finds the following facts:
1. That on March 7, 1949, plaintiff issued to the defendant, James Roy Harrill, its automobile liability insurance policy No. 308286, insuring the defendant, James Roy Harrill, according to the terms and conditions of said policy of insurance, against legal liability for bodily injury caused by accident resulting from the operation of a 1947 Chevrolet 1-Ton Truck, Motor No. ADCA-643291, with a limit of liability of $5,000 for injury to one person and $10,000 for each accident.
2. That said policy covered the period from March 7, 1949, to March 7, 1950, and was in full force and effect during the entire year from March 7, 1949, to March 7, 1950.
3. That James Roy Harrill paid to the plaintiff the total premium due on said policy in the amount of $46.
4. That said policy was purchased by the said James Roy Harrill and issued by the plaintiff and delivered to the said James Roy Harrill at Forest City, North Carolina.
5. That at the time said policy was issued and at all times referred to in this cause, said James Roy Harrill was engaged in the wholesale candy business and had only one employee, to-wit: Harry Lee Brown, who was employed as a helper on said truck.
6. That on May 11, 1949, and while said policy of insurance was in force and effect, a Chevrolet truck owned by the defendant, James Roy Harrill, being the same truck insured by the plaintiff under its policy of insurance heretofore referred to, while being driven by the said James Roy Harrill, collided with a railroad train operated by The Clinchfield Railroad Company in or near the City of Marion, McDowell County, North Carolina, and as result of said collision, Harry Lee Brown, intestate, was killed.
7. That thereafter Guy Brown qualified as Administrator of the estate of Harry Lee Brown and instituted an action in the Superior Court of Rutherford County, North Carolina, against James Roy Harrill, The Clinchfield Railroad Company and Herman Harrill for the purpose of recovering damages for the alleged wrongful death of Harry Lee Brown.
8. That said action is still pending in the Superior Court of Rutherford County, North Carolina.
9. That James Roy Harrill filed an answer in said cause denying all liability and demanded that the plaintiff defend said action on his behalf and pay any recovery obtained against him by Guy Brown, Administrator of the estate of Harry Lee Brown, deceased, in said action, within the limits contained in the policy of liability insurance hereinabove referred to.
10. That thereupon the plaintiff instituted this action in the District Court of the United States for the Western District of North Carolina for the purpose of obtaining a declaratory judgment.
11. That in this cause the plaintiff alleges that by reason of Exclusion (d) contained in said policy it is not obligated to defend the action instituted by Guy Brown as Administrator of the estate of Harry Lee Brown, deceased, against James Roy Harrill, and others, and is not obligated to pay any recovery obtained by the said Guy Brown, Administrator of the estate of ...
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