Commercial Casualty Ins. Co. v. White Line T. & S. Co.
| Decision Date | 14 October 1940 |
| Docket Number | No. 11704.,11704. |
| Citation | 114 F.2d 946 |
| Parties | COMMERCIAL CASUALTY INS. CO. v. WHITE LINE TRANSFER & STORAGE CO., Inc., et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John P. Hampton, of Chicago, Ill. (Louis L. Dent, George M. Weichelt, and Roger D. Doten, all of Chicago, Ill., on the brief), for appellant.
Ehlers English, of Des Moines, Iowa (Donald Evans and William F. Riley, both of Des Moines, Iowa, on the brief), for appellee Saint Paul Mercury Indemnity Co.
Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
This appeal is taken by the Commercial Casualty Insurance Company from a decree and judgment entered against it on November 29, 1939, in a suit for declaratory judgment wherein it was the party plaintiff. The gist of its complaint in this court is that there was irregularity in the proceedings and final decree and judgment resulting in erroneous denial of its right to a hearing and trial. It sought relief from the judgment by motion to set it aside, filed within ten days after entry, but the motion was denied and that ruling is also appealed from.
The object of the plaintiff's petition was to obtain a declaratory judgment to the effect that the plaintiff was not obligated under an automobile policy issued by it to three defendant White Line companies, either to defend or to pay recoveries that might be had in personal injury actions brought against those companies by certain members of the Smith family named as defendants in this suit. It was alleged that insurance issued by the defendant Saint Paul Mercury Indemnity Company to the White Line companies covered the accidents suffered by the Smiths. The Saint Paul company answered the petition by way of denial and also formally pleaded a "counter claim" in which it prayed affirmative declaration against plaintiff and its co-defendants that its policy did not cover the accident and that a permanent injunction be awarded it against the plaintiff, the White Line companies and the Smiths, enjoining them from instituting actions or asserting claims against it under its policy. The answer of the White Line companies to the plaintiff's petition contained allegations to the effect that the plaintiff was obligated under its policy to defend the Smiths' actions and to pay any recoveries therein. Their answer prayed for affirmative relief against the plaintiff, that plaintiff be declared obligated to defend and to pay in the Smith actions. The defendants Smith answered, among other things praying for affirmative relief that the plaintiff and the Saint Paul company, "one or both", be declared to be liable to pay all recovery they might obtain on account of their injuries. The plaintiff filed no pleading except the "complaint" upon which it instituted the action.
It appears that the district court for the southern district of Iowa, central division, convened pursuant to statute on November 28, 1939, and the court having made a call of the non-jury cases, set this case down for trial on the next day after the call (November 29, 1939). The plaintiff was not represented at the call (its counsel having formally withdrawn of record on the 27th), and it failed to appear on the 29th, but the parties named in its petition as defendants were represented and...
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