CONNECTICUT INDEMNITY CO. OF NEW HAVEN v. Oliver, 13772.

• Citation: 172 F.2d 68
• Decision Date: 11 January 1949
• Docket Number: No. 13772.,13772.
• Parties: CONNECTICUT INDEMNITY CO. OF NEW HAVEN, CONNECTICUT v. OLIVER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

172 F.2d 68 (1949)

CONNECTICUT INDEMNITY CO. OF NEW HAVEN, CONNECTICUT
v.
OLIVER et al.

No. 13772.

United States Court of Appeals Eighth Circuit.

January 11, 1949.

172 F.2d 69

R. P. Rogers, Jr., of Kansas City, Mo. (Henry W. Buck, and Morrison, Nugent, Berger, Hecker & Buck, all of Kansas City, Mo., on the brief), for appellant.

William B. Teasdale, of Kansas City, Mo. (James P. Aylward and George V. Aylward, both of Kansas City, Mo., on the brief), for appellees, Donna Lee Oliver, Everett C. Oliver and Cora L. Oliver.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

COLLET, Circuit Judge.

From an order of the District Court made on its own motion dismissing plaintiff's petition for declaratory judgment for want of diversity of citizenship and thereafter refusing to permit appellant to file an amended petition eliminating one defendant and thereby creating diversity of citizenship but alleging the pendency of an action in the state courts in which the question sought to be determined in the declaratory judgment suit could be adjudicated, this appeal is prosecuted.

The Connecticut Indemnity Company of New Haven, Connecticut Connecticut, is a Connecticut corporation. It is engaged in the business of writing automobile indemnity insurance. The Security Insurance Company Security, also a Connecticut corporation, engages in the business of writing other types of insurance. Security uses automobiles in the prosecution of its business in Missouri. It obtained from Connecticut a policy indemnifying it in the payment of any sums which it might become obligated to pay on account of injuries or damages caused by accident and arising out of the ownership, maintenance or use of the automobiles covered in the policy. The contract of insurance further provided it was to cover as an "insured" not only Security but also any person while using the automobile covered by the policy and any other person or organization legally responsible for the use of the automobile if and when the actual use of the automobile was with the permission of the named insured. Security was the named insured. Mr. Joseph C. Hupp was the state agent for Security in Missouri. His son, Thomas William Hupp, was driving an automobile owned by Security and described in the policy on the 18th of August, 1946, when it was involved in an accident on a public highway near Kansas City, Missouri.

As a result of that accident, Donna Lee Oliver, a minor, brought an action by her father, Everett C. Oliver, acting as her next friend, in the Circuit Court of Jackson County, Missouri, on June 14, 1947, against Thomas William Hupp, Joseph C. Hupp, and Security, in which damages were sought for personal injuries arising out of the automobile accident. Two days later, on June 16, 1947, Connecticut filed this action in the United States District Court. In the original petition herein no reference was made to the previous filing of the damage suit in the state court. In the original petition in this cause Donna Lee Oliver; Everett C. Oliver, her father and next friend in the state court proceeding; her mother, Cora L. Oliver; Thomas William Hupp; Joseph C. Hupp, and the Security Insurance Company were all made defendants.

It was alleged that the policy had been issued as above stated, that an accident had occurred, that Thomas William Hupp was not operating the automobile with the permission or knowledge of Security at the time of the accident but in fact was operating it without permission of and in violation of the specific instructions of his father, Joseph C. Hupp; that Connecticut could not be made a party to any proceedings brought in the state court by or on behalf of Donna Lee...