GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION v. Morgan

• Decision Date: 24 November 1939
• Docket Number: Civ. No. 181.
• Citation: 30 F. Supp. 753
• Parties: GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND, v. MORGAN et al.
• Court: U.S. District Court — Western District of New York

30 F. Supp. 753

GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND, v. MORGAN et al.

Civ. No. 181.

District Court, W. D. New York.

November 24, 1939.

Gibbons, Pottle & Pottle, of Buffalo, N. Y., for plaintiff.

H. B. & B. H. Butterfield, of Buffalo, N. Y., for defendant Alfred C. Morgan.

Walter F. Hofheins, of Buffalo, N. Y., for defendant Russell P. Sackett.

Kenefick, Cooke, Mitchell, Bass & Letchworth, of Buffalo, N. Y., for defendant Lehigh Valley R. Co.

KNIGHT, District Judge.

This action has been brought to obtain a declaratory judgment respecting the rights of the plaintiff under a policy of insurance issued by the General Accident Fire & Life Assurance Corporation, Ltd., of Perth, Scotland, to Herbert I. Sackett. On January 2, 1939, Herbert I. Sackett, Kathleen Sackett, his wife, and Susan B. Sackett, their infant child, were killed in an accident as a result of a collision between an automobile in which they were riding and a train operated by the defendant Lehigh Valley Railroad Company. On April 23, 1938, there was issued to Herbert I. Sackett an automobile liability policy of insurance obligating the insurer to pay all sums that the insurer should become obligated by law to pay because of bodily injuries, including death, sustained by any person caused by accident or arising out of the ownership of a certain automobile. This policy was in force at the time the aforesaid individuals were killed, and it covered the automobile which was in collision.

Prior to the institution of this action, there was brought and is now pending in the Supreme Court in New York State an action by defendant herein, Alfred C. Morgan, as Administrator of the goods, chattels and credits of Kathleen Sackett, deceased, against defendants, Russell P. Sackett, as Administrator of the estate of Herbert I. Sackett, deceased, and Lehigh Valley Railroad Company. This latter suit is brought to recover damages on account of the death of Kathleen Sackett caused by the joint negligence of Herbert I. Sackett and the Lehigh Valley Railroad Company. Issue has been joined in the suit of the state court.

A motion is now made by the plaintiff upon the pleadings and certain affidavits for a summary judgment in this suit for a declaratory judgment, upon the ground that there are no genuine issues as to any material fact and that the plaintiff is entitled to judgment as a matter of law.

This court has jurisdiction to entertain this suit for a declaratory judgment. There is an actual controversy between the plaintiff and the defendants, and the amount in controversy, exclusive of interest and costs, is more than $3000. Section 274d, Judicial Code, 28 U.S.C.A. 400; Rule 57, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c.

Considering the issues, the parties and legal questions involved, suit for a declaratory judgment is amply warranted, and the court in the exercise of its discretion should entertain it. Automotive Equipment Inc. v. Trico Products Corp., D.C., 11 F.Supp. 292; Maryland Casualty Co. v. Consumers Finance Service, 3 Cir., 101 F.2d 514; Anderson v. Aetna Life Ins. Co., 4 Cir., 89 F.2d 345; Columbian National Life Ins. Co. v. Foulke, 8 Cir., 89 F.2d 261; Western Casualty & Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560; Aetna Casualty &...