Commonwealth of Kentucky v. Maryland Casualty Co., No. 8291.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtHICKS, ALLEN, and HAMILTON, Circuit
Citation112 F.2d 352
PartiesCOMMONWEALTH OF KENTUCKY, for Use and Benefit of KERN v. MARYLAND CASUALTY CO. OF BALTIMORE, MD.
Docket NumberNo. 8291.
Decision Date05 June 1940

112 F.2d 352 (1940)

COMMONWEALTH OF KENTUCKY, for Use and Benefit of KERN
v.
MARYLAND CASUALTY CO.
OF BALTIMORE, MD.

No. 8291.

Circuit Court of Appeals, Sixth Circuit.

June 5, 1940.


112 F.2d 353
COPYRIGHT MATERIAL OMITTED
112 F.2d 354
William E. Wehrman, of Covington, Ky., for appellant

Robert A. Black and Harry B. Mackoy, Sr., both of Cincinnati, Ohio, for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This is an appeal from a summary judgment entered pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. The issues arise under substantially the following circumstances:

Jesse W. Franklin, a resident of Ohio and the owner of an automobile, was the assured under a liability policy of appellee, The Maryland Casualty Company of Baltimore, Maryland, which policy, among other things, provided:

"Against loss from liability imposed by law upon the Assured for damages * *

"The insurance provided by this Policy is hereby made available in the same manner and under the same conditions as it is available to the named Assured, to any person operating and/or to any other person while riding in and/or to any other person, firm or corporation legally responsible for the operation of any of the Automobiles described in the statements, provided the use and operation thereof are with the permission of the named Assured, or, if the named Assured be an individual, with the permission of an adult member of the named Assured's household other than a chauffeur or a domestic servant, * * * provided further, insurance under this Policy shall be applied by the Company first to the protection of the named Assured, and the remainder, if any, to the protection of others entitled to insurance under the provisions and conditions of this Insuring Agreement as the named Assured shall in writing direct."

Prior to March 17, 1935, Franklin authorized Paula Endres, a resident of the State of Ohio, to take possession, use and operate the automobile covered by the foregoing policy and prior to that date, with her knowledge and consent, William Endres, twenty years of age, her nephew and living in her household, took possession of the automobile and drove it over the highways of the Commonwealth of Kentucky accompanied by Louis Kern and as a result of an accident in the operation of the car, the latter was killed.

On March 14, 1936, Gertrude Kern, Administratrix of Louis Kern, instituted an action in the Kenton Circuit Court, Covington, Kentucky, against the assured, Jesse W. Franklin and Paula Endres, in which she alleged that they were the owners of the automobile in question and that it was being negligently driven by William Endres, at the time her intestate was killed.

Constructive service of process was made upon the defendants, pursuant to chapter 80, sections 1 and 2 of the Acts of 1930 of the General Assembly of the Commonwealth of Kentucky. Sections 12-1, 12-2 Carroll's Kentucky Statutes, Baldwin's 1936 Revision.

The defendant, Franklin, in that action removed the cause to the United States District Court for the Eastern District of Kentucky on account of diversity of citizenship and thereafter on plaintiff's motion, it was dismissed without prejudice as to him and remanded to the state court. The defendant, Paula Endres, defaulted in consequence of her non-appearance and pursuant to Section 379 of Carroll's Kentucky Civil Code of Practice, Baldwin's Revision, the court empaneled a jury for the assessment of damages, which returned a verdict for $25,000 on which verdict the court entered a judgment. Plaintiff in that action caused an execution to be issued to Kenton County against Paula Endres, which was returned "no property found."

Appellant here instituted this action, pursuant to the provisions of the Financial Responsibility Act of the State of Kentucky (Acts of General Assembly of Commonwealth of Kentucky, 1936, Chap. 70, Section 7), against appellee as insurance carrier of J. W. Franklin, seeking to collect $10,000 (or the face of the policy) under the judgment she had obtained against Paula Endres and in her petition she alleged that J. W. Franklin was the sole owner...

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14 practice notes
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...Ins. Co. of America, 8 Cir., 126 F.2d 960; Commonwealth of Kentucky for Use and Benefit of Kern v. Maryland Casualty Co., 6 Cir., 112 F.2d 352, we must inquire whether it ever gained the legal power to act against Several reasons lead us to believe that the District Court never gained juris......
  • Kerr v. Greenstein, No. 4-8531.
    • United States
    • Supreme Court of Arkansas
    • May 3, 1948
    ...expressly stated or necessarily implied." Other cases sustaining the above statements are: Commonwealth v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; Webb Packing Co. v. Harmon, 38 Del. 476, 193 A. 596; Rose v. Gisi, 139 Neb. 593, 298 N.W. II. Historical Study of Our Statute. Having there......
  • Carlson v. District Court of City and County of Denver, 15849.
    • United States
    • Colorado Supreme Court of Colorado
    • April 28, 1947
    ...v. Asher, D.C., 55 F.2d 365; Wood v. White, 68 App.D.C. 341, 97 F.2d 646; Commonwealth of Kentucky v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; 9 Blashfield Encyclopedia of Automobile Law and Practice, Perm.Ed., § 5914, page 442; 50 Am.Jur., p. 421, § 397; 59 C.J., p. 1124, § 665. No not......
  • Crawford v. Carson, No. CC807
    • United States
    • Supreme Court of West Virginia
    • November 10, 1953
    ...N.W. 77; Rose v. Gisi, 139 Neb. 593, 298 N.W. 333; Commonwealth of Kentucky, for Use and Benefit of Kern v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; 5 Am.Jur., Automobiles, § 591. Giving effect to the rule of strict application, a casual reading of the statute discloses that it concerns......
  • Request a trial to view additional results
14 cases
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...Ins. Co. of America, 8 Cir., 126 F.2d 960; Commonwealth of Kentucky for Use and Benefit of Kern v. Maryland Casualty Co., 6 Cir., 112 F.2d 352, we must inquire whether it ever gained the legal power to act against Several reasons lead us to believe that the District Court never gained juris......
  • Kerr v. Greenstein, No. 4-8531.
    • United States
    • Supreme Court of Arkansas
    • May 3, 1948
    ...expressly stated or necessarily implied." Other cases sustaining the above statements are: Commonwealth v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; Webb Packing Co. v. Harmon, 38 Del. 476, 193 A. 596; Rose v. Gisi, 139 Neb. 593, 298 N.W. II. Historical Study of Our Statute. Having there......
  • Carlson v. District Court of City and County of Denver, 15849.
    • United States
    • Colorado Supreme Court of Colorado
    • April 28, 1947
    ...v. Asher, D.C., 55 F.2d 365; Wood v. White, 68 App.D.C. 341, 97 F.2d 646; Commonwealth of Kentucky v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; 9 Blashfield Encyclopedia of Automobile Law and Practice, Perm.Ed., § 5914, page 442; 50 Am.Jur., p. 421, § 397; 59 C.J., p. 1124, § 665. No not......
  • Crawford v. Carson, No. CC807
    • United States
    • Supreme Court of West Virginia
    • November 10, 1953
    ...N.W. 77; Rose v. Gisi, 139 Neb. 593, 298 N.W. 333; Commonwealth of Kentucky, for Use and Benefit of Kern v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; 5 Am.Jur., Automobiles, § 591. Giving effect to the rule of strict application, a casual reading of the statute discloses that it concerns......
  • Request a trial to view additional results

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