Firemen's Ins. Co. of Newark, NJ v. Show

• Decision Date: 29 January 1953
• Docket Number: No. 1318.,1318.
• Citation: 110 F. Supp. 523
• Parties: FIREMEN'S INS. CO. OF NEWARK, N. J. et al. v. SHOW et al.
• Court: U.S. District Court — District of Montana

110 F. Supp. 523

FIREMEN'S INS. CO. OF NEWARK, N. J. et al. v. SHOW et al.

No. 1318.

United States District Court, D. Montana, Great Falls Division.

January 29, 1953.

H. C. Hall, Edward C. Alexander and Howard C. Burton, Great Falls, Mont., for plaintiffs.

W. R. McDonald, Browning, Mont., Selden S. Frisbee and John P. Moore, Cut Bank, Mont., for defendants.

PRAY, Chief Judge.

The plaintiff insurance companies in the above entitled cause instituted this proceeding under the Declaratory Judgments Act, 28 U.S.C.A. § 2201, seeking injunctive relief and determination of ownership of that certain automobile in question and the validity of that certain automobile liability insurance policy thereon, with respect to plaintiffs' liability thereunder and obligations to the insured with relation to persons alleged to have been injured in a collision and accident which occurred on or about December 17, 1950, near Browning, Montana.

Defendants' separate motions to dismiss upon the grounds the complaint fails to state a claim upon which declaratory relief can be granted have heretofore been overruled; the question of injunctive relief is not ruled upon because it is not before the court at this stage of the proceedings.

The complaint sets forth that a certain liability insurance policy was issued to defendant Jerry Show on the condition that he was the sole owner of a certain Willys pickup truck and the condition that there was no conditional sale, mortgage, or other encumbrance upon said truck, and said policy of insurance was continued in force by transfer upon a 1950 Ford pickup truck upon the same conditions.

That in January, 1951, plaintiffs investigated an accident which occurred on or about December 17, 1950, when said Ford truck was being driven by defendant Jerry Show, at a point approximately 10 miles south of the town of Browning, in Glacier County, Montana; that as a result of said accident the defendants John T. Show and Joseph P. Weatherwax have commenced actions in State court against defendant Jerry Show, and demand has been made upon plaintiffs by defendant Jerry Show to defend the suits now pending in State court.

Plaintiffs contend that their investigation determined that Jerry Show was not the owner of the said 1950 Ford pickup truck but that one J. W. Show (father of Jerry Show) was the owner of said truck, and that it was later discovered said truck was encumbered with a conditional sale contract or mortgage; that the said policy of insurance is invalid and void as of the date of issuance on November 29th, 1950, of the endorsement transferring said policy from the 1947 Willys ¾ ton pickup truck to the 1950 Ford ½ ton pickup truck, and no liability has accrued or could accrue by reason of the false and untrue statements and declarations made by the defendant Jerry Show and relied upon by plaintiffs with respect to the ownership of said 1950 Ford pickup truck, and with respect to the encumbrances thereon; that tender was made of the premium paid for said insurance in the sum of $97.72, and request made for surrender of said policy for cancellation, which tender and request was admitted by defendant Jerry Show on May 14, 1951, and refused by him.

Plaintiffs allege that they will be subject to great peril and hazard if they disclaim liability under said policy of insurance before a determination of their proper rights thereunder, and be subjected to large expense if required to defend the suits now pending in State court against defendant Jerry Show, and plaintiffs deny any and all liability under the terms of said policy of insurance, and deny they are obligated to defend the actions brought against defendant Jerry Show.

The policy of insurance involved herein, being Exhibit "A" attached to the complaint, shows that policy No. FM 787 116 was issued to cover a 1947 Willys ¾ ton pickup truck, with Jerry Show of Browning, Montana, being the named insured, for the policy period September 25, 1950 to September 25, 1951; that on October 26, 1950, an endorsement was issued, with Jerry Show as named insured, to cover said 1947 Willys truck with a new motor, and attached to said policy; that thereafter a change of automobile endorsement, effective November 29, 1950, with Jerry Show as named insured, transferred said policy from said 1947 Willys pickup truck to said 1950 Ford pickup truck, and was attached to said policy; that said policy and the endorsements thereto were countersigned by C. E. Frisbee, Agent.

Pre-trial hearing was had on April 26, 1952, and thereafter counsel agreed upon and submitted an order pursuant to the pre-trial proceedings, and the court on May 1st, 1952, accordingly entered its order, viz: that the transcript of the pre-trial proceedings be filed in the case; that all admissions and the exhibits agreed upon be received as evidence in the trial without further identification or foundation; that the sole issue remaining to be tried in said cause is whether the defendant Jerry Show was the owner of the 1950 Ford ½-ton pickup truck, motor number 98 RC 500 378.

The cause then came on regularly for hearing on June 2nd, 1952, before the court, without a jury. Plaintiffs' counsel offered the following exhibits, which were received in evidence without objection: Plaintiffs' Exhibit "A", the order on pre-trial hearing, Plaintiffs' Exhibit "B", the transcript of the pre-trial proceedings, and Plaintiffs' Exhibits "C" to "H", inclusive, being the same documents as were designated Plaintiffs' Exhibits Nos. 1 to 6, inclusive, in the pre-trial proceedings, as follows:

(1) certified copy of chattel mortgage, dated December 5, 1950, in the name of J. W. Show, covering said 1950 Ford ½ ton pickup truck;

(2) certified copy of Application for a Certificate of Title for a Motor Vehicle, dated December 5, 1950, by J. W. Show, for said 1950 Ford ½ ton pickup truck;

(3) Certificate of Title of a Motor Vehicle, Title No. 719255, dated December 21, 1950, in the name of J. W. Show, for said 1950 Ford ½ ton pickup truck;

(4) certified copy of Release of Lien, by Universal C. I. T. Corporation, dated April 25, 1951, for said 1950 Ford ½ ton pickup truck;

(5) certified copy of motor vehicle license and tax receipt, 1950, paid by J. W. Show, for said 1950 Ford ½ ton pickup truck;

(6) Disbursement Draft No. 22201, dated May 8, 1951, designated "Refund of premium on Policy # FM 787 116—Jerry Show", payable from Firemen's Insurance Company to Jerry Show, with letter tendering premium and requesting surrender of policy for cancellation, and admission of tender of $97.72 premium and demand for surrender of policy No. FM 787 116.

Counsel rested plaintiffs' case on the proceedings and documentary evidence hereinbefore set forth, without the testimony of any witnesses, and it appears that the documentary evidence presented constitutes a prima facie case showing that according to such records the title and ownership of said 1950 Ford ½ ton pickup truck is in the name of J. W. Show, except that Jerry Show is shown as the owner in the insurance policy involved herein, which is Exhibit "A" attached to the complaint; that plaintiffs' prima facie case is subject, however, to the proof of defendants' case.

Defendants introduced evidence by defendant Jerry Show, J. W. Show, father of Jerry Show, and by Edward Nash, bookkeeper for Perry Motors, and Harry Shook, salesman for Perry Motors, that on November 29th, 1950, the initial downpayment on the purchase price of $1,837.51 for the said 1950 Ford pickup truck was made in part by the trade-in allowance of $652.05 on the 1947 Willys ¾ ton pickup truck which was owned by Jerry Show, and which fact of ownership was supported by a certified copy of Certificate of Title in the name of Jerry Show, being Defendants' Exhibit "I"; that as a further part of the initial downpayment a check in the amount of $500.00 was made payable to Perry Motors by J. W. Show as Administrator of the estate of Anna Show, which represented funds belonging to Jerry Show in his mother's estate. Ordinarily under the laws of the State of Montana the husband, J. W. Show, who was appointed Administrator of the estate of his wife, Anna Show, would inherit one-third and the children would inherit two-thirds, which is corroborative of the evidence that Jerry Show had an interest in the estate of his mother, Anna Show.

Witness Edward Nash testified in behalf of defendants that he handled the details of the transaction, including contracts; that Jerry Show was the buyer of the truck but due to the fact he was only 19 years old it appeared the only alternative was to register the vehicle in J. W. Show's name so that Perry Motors could assign the contract or chattel mortgage to Universal C. I. T. Corporation as a contract or mortgage of a minor was not acceptable; that on December 5th or 6th, 1950, when Jerry Show took delivery of the pickup truck he paid the additional $27 required to make up the total downpayment; that Plaintiffs' Exhibit "L" is an invoice in the name of J. W. Show, Plaintiffs' Exhibit "M" is a ledger sheet from the ledger of Perry Motors Company showing the account of J. W. Show; the mortgage signed by J. W. Show was assigned by Perry Motors to Universal C. I. T. Corporation; that it was the policy of Perry Motors to have an adult sign for a minor to guarantee the account.

Witness Harry Shook testified substantially the same as witness Nash, that Jerry Show owned the 1947 Willys pickup truck, that he sold the 1950 Ford pickup truck to Jerry Show and because of the restrictions of Universal C. I. T. with respect to a mortgage being signed by a minor it was his and Nash's idea to put the truck in the name of J. W. Show although the Shows had requested the said Ford truck be put in the name of Jerry Show as the purchaser and owner.

It appears that the payments in the transaction in the amounts of $652.05, $500 and $27 make a total of $1,179.05, leaving a balance of $658.46 from the...