Flowers v. Fidelity & Casualty Co.

• Citation: 156 F.2d 586
• Decision Date: 17 August 1946
• Docket Number: No. 3280.,3280.
• Parties: FLOWERS v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Tenth Circuit

156 F.2d 586 (1946)

FLOWERS v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 3280.

Circuit Court of Appeals, Tenth Circuit.

July 11, 1946.

Rehearing Denied August 17, 1946.

Paul R. Kitch, of Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, and Wayne V. Coulson, all of Wichita, Kan., on the brief), for appellant.

Lawrence Weigand, of Wichita, Kan. (Claude I. Depew, W. E. Stanley, William C. Hook, and Lawrence Curfman, all of Wichita, Kan., on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This was an action for damages by appellant, Mary Flowers, herein called the plaintiff, brought directly against the Fidelity & Casualty Insurance Company of New York, the liability insurance carrier¹ for the DeCoursey Cream Company,² for injuries sustained from the operation of one of its trucks. Plaintiff has appealed from the judgment of the trial court sustaining a motion for a directed verdict for the company.

The facts are simple and not in dispute. The DeCoursey Cream Company, a private carrier within the definition of the Kansas Motor Vehicle Act,³ among other places operates a creamery station in Wichita, Kansas. The truck in question was domiciled in Wichita, and was used in transporting the company's dairy products to Anthony, Kansas, a distance of approximately seventy-five miles. On the day of the accident, the truck was on a return trip from Anthony to Wichita. There is no claim that it was being operated otherwise than in the regular course of the company's business. The accident occurred before the truck had completed its journey, but after it had reached the city limits of Wichita.

The Motor Vehicle Carriers Act of Kansas is a comprehensive act regulating the uses and operations of motor vehicles upon the highways of Kansas. It concerns itself primarily with taxation and public safety. In the interest of brevity, only such sections of the Act as affect the issues in this case will be discussed. G.S. 66-1,109, among others, exempts from the provisions of the Act "(b) * * * private motor carriers who operate within a radius of twenty-five miles beyond the corporate limits of such city * * *." As far as private carriers are concerned, G. S. 66-1,128 provides that no license shall be issued until such carrier shall have filed a liability bond approved by the Public Service Commission to adequately protect the interest of the public against loss resulting from the operation of such carrier.

The DeCoursey Cream Company made application for the necessary license, filed its bond, which was approved by the Commission, and received its license to operate as a private carrier. The Supreme Court of Kansas has held in an unbroken line of decisions, beginning with Dunn v. Jones, 143 Kan. 218, 53 P.2d 918, that the statutory policy required of a private motor carrier by the Act was a liability policy, and that an action for damages for loss resulting from the operations of the licensed carrier was maintainable directly against the insurance carrier. The trial court's judgment dismissing the action was based on its legal conclusion that the Act "does not apply to vehicles operated by and as private motor carriers after such vehicles reach a point within twenty-five miles of the corporate limits of the city where such vehicles are domiciled."

The constitutionality of the Kansas Motor Vehicle Act has been considered by the federal courts in two cases.⁴ In both cases the constitutionality of the Act was upheld. The decision in the Woodring case was affirmed by the Supreme Court in Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402. The Supreme Court of Kansas apparently has not interpreted or passed upon the constitutionality of the Act. The Woodring case is largely relied upon to sustain the judgment of the lower court.

While other questions were considered in the Woodring case, the main attack on the constitutionality of the Act was centered upon the tax levying provisions of the Act. It was there argued that a classification which exempted private carriers operating within a radius of twenty-five miles of a city from the payment of a mileage tax, while subjecting those private carriers who operated for greater distances from the city limits to the tax, was arbitrary and unreasonable. A three-judge court construed the Act to mean that private carriers, whether limiting their operations to the twenty-five mile zone surrounding the city or going beyond it, were exempt from the provisions of the Act within the twenty-five mile zone, and that none were required to pay the tax for the first twenty-five miles of operation from the city limits where the truck was domiciled. So construed, the court, one judge dissenting, found no difficulty in...