Dearborn Nat. Casualty Co. v. Consumers Petroleum Co.

Decision Date15 November 1947
Docket NumberNo. 9133.,9133.
Citation164 F.2d 332
PartiesDEARBORN NAT. CASUALTY CO. v. CONSUMERS PETROLEUM CO.
CourtU.S. Court of Appeals — Seventh Circuit

Andrew J. Farrell, of Chicago, Ill., for appellant.

Harry G. Hershenson, Edward Hershenson, James B. McKeon and Hershenson & Hershenson, all of Chicago, Ill., for appellee.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

MINTON, Circuit Judge.

The plaintiff-appellant, an insurance company, issued its automobile liability and property damage policy to the defendant-appellee covering all commercial automobiles owned by the defendant, including a fuel oil truck used to deliver fuel oil to consumers. The policy provided: "Notice Of Accident — Upon the occurrence of an accident written notice shall be given by or on behalf of the Insured to the Company or any of its authorized agents as soon as practicable."

The plaintiff filed a complaint for a declaratory judgment as to its liability under this policy, alleging that an accident involving the fuel oil truck occurred October 17, 1941, and that no written notice thereof was given to the plaintiff until January 19, 1942. The plaintiff contended that the giving of notice 94 days after the accident occurred was not "as soon as practicable" as required by the policy, and that this was such a material breach of a condition precedent as to relieve the plaintiff of liability to the defendant. The defendant's answer did not deny that the only notice it gave was that of January 19, 1942, but did deny that it knew immediately of the accident and alleged that it gave notice as soon as claim was made upon it. The case was tried by the court without a jury, and judgment was rendered for the defendant, from which judgment the plaintiff has appealed.

The court in denying relief to the plaintiff recited in its order: "* * * that said policy of insurance was not breached by the defendant, Consumers Petroleum Company, and that said defendant notified the plaintiff of said accident as soon as practicable thereafter as required by the terms of said policy." We think the recital that the contract was not breached was a conclusion of law and the balance of the recital was a conclusion of the ultimate fact. This order is hardly a compliance with Federal Rule of Civil Procedure 52(a)1 which provides: "In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." This rule is mandatory and should be observed by the trial courts. While the...

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23 cases
  • Deal v. Cincinnati Board of Education
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 6, 1966
    ...Kelley v. Everglades Drainage District, 319 U.S. 415, 420, 63 S.Ct. 1141, 87 L.Ed. 1485 (1943); Dearborn Nat'l Cas. Co. v. Consumers Petroleum Co., 164 F.2d 332, 333 (7th Cir. 1947). See also Townsend v. Benavente, 339 F.2d 421 (9th Cir. 1964). But see Gay Games, Inc. v. Smith, 132 F.2d 930......
  • New England Power Co. v. Town of Barnet
    • United States
    • Vermont Supreme Court
    • October 5, 1976
    ...was reached.' Wells v. Village of Orleans, Inc., 132 Vt. 216, 221, 315 A.2d 463, 466 (1974); Dearborn National Casualty Co. v. Consumers Petroleum Co., 164 F.2d 332 (7th Cir. 1947); R. Field, V. McKusick & L. Wroth, Main Civil Procedure §§ 52.1, 52.6 (1959). Such is the purpose of V.R.C.P. ......
  • Steccone v. Morse-Starrett Products Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 12, 1951
    ...& Tel. Co., 5 Cir., 1950, 181 F.2d 341; Bach v. Friden Calculating Mach. Co., 6 Cir., 1945, 148 F.2d 407; Dearborn Nat. Cas. Co. v. Consumers Petroleum Co., 7 Cir., 1947, 164 F.2d 332. 11 See, J. E. Haddock, Ltd. v. Pillsbury, 9 Cir., 1946, 155 F.2d 820, certiorari denied 329 U.S. 719, 67 S......
  • Schwerman Trucking Co. v. Gartland Steamship Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 9, 1974
    ...party has "an obligation to a busy court to assist it in performance of its duty" under Rule 52(a). Dearborn Nat. Cas. Co. v. Consumers Petroleum Co., 7 Cir., 164 F.2d 332, 333 (1942). Other Circuits have held likewise. Schilling v. Schwitzer-Cummins Co., 79 U.S.App.D.C. 20, 142 F.2d 82 (19......
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