(AMERICAN) LUMBERMENS MUT. CAS. CO. v. Timms & Howard

• Decision Date: 18 December 1939
• Docket Number: 94.,No. 93,93
• Citation: 108 F.2d 497
• Parties: (AMERICAN) LUMBERMENS MUT. CASUALTY CO. OF ILLINOIS v. TIMMS & HOWARD, Inc., et al. SAME v. SCHILL et al.
• Court: U.S. Court of Appeals — Second Circuit

108 F.2d 497 (1939)

(AMERICAN) LUMBERMENS MUT. CASUALTY CO. OF ILLINOIS v. TIMMS & HOWARD, Inc., et al. SAME v. SCHILL et al.

Nos. 93, 94.

Circuit Court of Appeals, Second Circuit.

December 18, 1939.

COPYRIGHT MATERIAL OMITTED

Oscar J. Brown, of Syracuse, N. Y., for appellant.

George H. Bond, Jr., and Bond, Schoeneck & King, all of Syracuse, N. Y., for appellees in No. 93.

Clifford H. Searl and Searl, Langan & Searl, all of Syracuse, N. Y., for appellees in No. 94.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Though these cases disclose procedural oddities, they show no attempt at procedural economy. The plaintiff seeks adjudications of non-liability on its policy of bodily injury and property damage liability issued to defendant Timms & Howard, Inc., on an automobile truck, on the ground that the particular accident which has resulted in the threat of claims against its insured occurred when the truck was being used otherwise than as provided in the policy. It has, however, brought two actions for declaratory judgments, one against its insured and the latter's employee, the operator of the motor vehicle in question, and the other against the potential claimants, six in number — the mother, two brothers, two sisters, and a friend of the operator who rode the truck at the time of the accident. No good reason exists for such duplication; in fact the two actions were tried together and adjudicated on the same evidence. A single action against all is usual and natural (compare cases collected by Borchard, Declaratory Judgments and Insurance Litigation, 34 Ill. L.Rev. 245, 250, 255-258); the unnecessary second suit here seems at least partly responsible for some of the oddities now placed before us. With the example set by the plaintiff, defendants were perhaps under no obligation to shorten litigation by presenting their own damage claims. Hence the judgments in their favor are, in effect, an authorization and a mandate for from one to perhaps six negligence actions over the accident. The cases were tried before the new rules of civil procedure became effective.¹ 28 U.S.C.A. following section 723c. At least hereafter under those rules, cross-claims between the defendants, when properly sued together, afford a means of determining the entire controversy with a minimum of procedural steps. Rule 13(g).

The first, perhaps the chief, oddity presented here is an "advisory" verdict of the jury answering a special question submitted to it by agreement of the parties. The one verdict was then entered in each case and accepted by the judge, though he treated it as not binding upon him, for he made his own formal findings of fact and conclusions of law and entered judgments upon them about a year after the verdict was returned. By what steps the parties came thus to try their cases is not clear; when we learn about the jury from the record it is present in court, ready to hear the evidence in a capacity manifestly agreed upon already. The verdict is repeatedly designated by all counsel and the court as advisory, and it is so described in the court's findings and judgments.

The matter is important because the plaintiff now insists on its right, notwithstanding an adverse verdict, to challenge the vital holding below that the truck was within the policy coverage at the time of the accident. It says that the verdict was not final and moreover that the question asked was such as to make the answer given not entirely destructive of its case.

We shall have more to say as to the proper interpretation of the verdict later; now we turn our attention to its effect. Why the parties agreed to an advisory verdict does not appear. Counsel now suggest that it was taken because these were actions for declaratory judgments. But it is quite clear that the declaratory judgment is not a means of evading trial by jury, and that jury trial may be had as of right in a declaratory action such as this which at bottom concerns the duty of a contract-obligor to pay money on the fulfillment of a condition. 28 U.S.C.A. § 400 (3); Rule 57, F.R.C.P.; Pacific Indemnity Co. v. McDonald, 9 Cir., 107 F.2d 446; United States F. & G. Co. v. Koch, 3 Cir., 102 F.2d 288; Ætna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321; Borchard, op. Cit. supra, at page 258 of 34 Ill.L.Rev.; Borchard, Declaratory Judgments (1934) 119-121. Perhaps the parties were misled by the fact that the defendants, in addition to their denials and defenses, had added counterclaims for reformation of the policy for mistake. This issue, however, was not tried at all, but has merely been reserved for future consideration in the event of our reversals of the judgments below.

Whatever may be the explanation of their course of conduct, it seems clear that in law the parties effectively waived their jury right by not claiming it. New York Civil Practice Act, § 426; McGraw v. Bank of Richmondville, 238 App. Div. 437, 264 N.Y.S. 416; MacKellar v. Rogers, 109 N.Y. 468, 17 N.E. 350; cf. Federal Rule 38. That being so, there seems no reason why the parties, with the approval of the judge, should not agree that an advisory verdict be taken as in equity and with the same weight as such a verdict had in equity. New York Civil Practice Act, § 430; cf. Federal Rule 39 (c).² And in equity such a verdict was only the discretionary right of the court to have its "conscience enlightened," Vosburg Co. v. Watts, 4 Cir., 221 F. 402, 408, so that the review on appeal is from the court's judgment as though no jury had been present. Carroll v. Bullock, 207 N. Y. 567, 101 N.E. 438; Carroll v. Deimel, 95 N.Y. 252; Federal Reserve Bank of San Francisco v. Idaho Grimm Alfalfa Seed Growers' Ass'n, 9 Cir., 8 F.2d 922, 925, certiorari denied 270 U.S. 646, 46 S. Ct. 347, 70 L.Ed. 778; 3 Moore's Federal Practice 3031. True, the judge has discretion to set aside such a verdict, but his exercise of discretion is not reviewable. Colie v. Tifft, 47 N.Y. 119. Under the circumstances, therefore, the verdict, whatever it may mean, cannot properly be a factor finally determinative of this appeal. And as we point out below, we do not think it can be given the effect plaintiff desires, in view of the particular circumstances of this case, even if we should wish to accord it more weight than would be granted it under the decisions cited.

We turn, therefore, to a consideration of the plaintiff's claim that the truck at the time of the accident was being used merely on a pleasure trip outside the coverage of the policy. The policy itself was a general one for bodily injury and property damage liability from the use of automobiles, divided into classes of "pleasure and business" cars and "commercial" cars, the particular coverage being shown by endorsements or schedules. The endorsements here showed that the policy covered a 1½-ton Ford truck owned by the insured, Timms & Howard, Inc., "book dealers" of Syracuse, New York. While it is not specifically stated that this truck is not within the classification "pleasure and business" (defined as "personal, pleasure, family and business use"), we may accept the assumption of all, incorporated in a finding of the court, that it was not within this classification, but was a "commercial" car. "Commercial," in turn, is defined "as the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in Declaration 1" (i. e., book sellers). This definition provides the controlling language for the contract; it is reinforced by other general provisions, such as that the policy applies only to losses sustained while the automobile "is owned, maintained and used for the purposes stated as applicable thereto in the declarations."

John A. Schill, Jr., defendant together with the insured in the first action, was employed by the insured in a particular branch of its bookselling business as manager of its rental library department. The company had "branches" largely scattered over New York State and Pennsylvania. These were really stores, particularly drugstores, with which the insured left a rack containing a number of books to be rented upon a commission basis. The insured serviced these branches every two weeks or every month, supplying new books and collecting receipts. Schill drove the truck in question in this work. He was also charged with the duty of extending the lending business and developing new outlets for it. He received a substantial salary, plus a bonus with commissions, which at times was higher than that of the president of the concern. He took care of the garaging of the truck (there was no available garage in the city block wherein the insured's book store was located) and he procured gasoline, oil, and incidental repairs for it, being reimbursed therefor by his employer.

On Saturday, September 3, 1937, Schill asked permission to take the truck over the week-end for a visit, together with members of his immediate family, with some relatives in Meriden, Connecticut. Such permission was granted, and the accident, causing injuries to the occupants of the truck, occurred early the next morning when he had gone thirty or thirty-five miles east of Syracuse on this trip.

If there were no other facts than these, it would seem clear that the truck was being used at the time of the accident for Schill's own purposes, and not for those of the business, and hence was not within the policy coverage. Plaintiff relies on certain other facts as emphasizing the personal nature of the trip, such as the absence of books or library equipment in the truck at the time, the presence there of seven persons, five on boxes and pillows temporarily placed in the body of this delivery truck, the early Sunday morning start, and so on. We need not rehearse this evidence in detail, for defendants concede that the proposed visit to their Meriden...