Franks v. City of Okemah, Oklahoma

• Decision Date: 07 August 1959
• Docket Number: Civ. No. 4608.
• Citation: 175 F. Supp. 193
• Parties: Malinda McMillen FRANKS, by and through her mother and next friend, Clara McMillen, Plaintiff, v. CITY OF OKEMAH, OKLAHOMA, Wiley Edward Brewer, Howard Bennett, and James H. McMillen, Defendants, State Farm Mutual Automobile Insurance Company, Garnishee.
• Court: U.S. District Court — Eastern District of Oklahoma

175 F. Supp. 193

Malinda McMillen FRANKS, by and through her mother and next friend, Clara McMillen, Plaintiff, v. CITY OF OKEMAH, OKLAHOMA, Wiley Edward Brewer, Howard Bennett, and James H. McMillen, Defendants State Farm Mutual Automobile Insurance Company, Garnishee.

Civ. No. 4608.

United States District Court E. D. Oklahoma.

August 7, 1959.

Bailey & Pitchford, Okmulgee, Okl., Smith & Douglass, Henryetta, Okl., for plaintiff.

Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, Okl., for defendant.

EUGENE RICE, Chief Judge.

On the 19th day of November, 1958, in the District Court of Okfuskee County, State of Oklahoma, plaintiff was granted a judgment, by default, against Howard Bennett for the sum of $25,000 for pain and suffering and personal injuries sustained in an automobile collision between a car driven by the defendant, James H. McMillen, and a car driven by Wiley Edward Brewer, Chief of Police of the Town of Okemah, Oklahoma. Plaintiff alleges in her petition that Brewer, Chief of Police of the Town of Okemah, was not only the agent of the Town of Okemah but was also the agent of Howard Bennett, and that at the time of the collision he, Brewer, as the Chief of Police of the Town of Okemah, was, at Bennett's request, providing a police escort for Bennett through the Town of Okemah. Plaintiff's petition discloses that Bennett was driving his own car, following the car that Brewer was driving, and that Bennett's car did not come into contact with the car in which plaintiff was riding. The principal allegation of negligence by the plaintiff was to the effect that Brewer was driving at a speed of approximately 80 miles per hour at the time of the collision; that Bennett was following the police car, but at the time of the collision was able to swerve to the left and avoid striking either of the cars.

When the case was called for trial in the state court, Bennett did not appear, either in person or by counsel. Plaintiff dismissed her cause without prejudice against the City of Okemah and Wiley Edward Brewer. After the evidence was introduced, the Court sustained a motion to dismiss as to James H. McMillen.

After obtaining the judgment against the defendant, Bennett, plaintiff caused an execution to be issued which was returned, "No property found." Thereupon, the attorney for plaintiff filed an affidavit for garnishment, pursuant to the law of the State of Oklahoma, which affidavit is as follows:

"J. I. Pitchford, being first duly sworn, says that he is one of the attorneys for the plaintiff, Malinda McMillen Franks, in the above entitled action, and that the said plaintiff, on the 19th day of November, 1958, recovered judgment in the above entitled action against the said defendant, Howard Bennett, for the sum of $25,000.00, with interest thereon at the rate of Six (6) Per Cent per annum from said date, and all the costs of said action, and Execution was duly executed against the said judgment debtor, and the same was, on the 6th day of January, 1959, returned by the Sheriff of Okfuskee County, State of Oklahoma, unsatisfied and endorsed, `No property found in my County to levy on to satisfy this judgment,' and affiant has good reason to believe and does believe the State Farm Mutual Automobile Insurance Company has money and property of the said Howard Bennett in its possession and under its control and is indebted to him, and the said Plaintiff, Malinda McMillen Franks, is desirous of having an order issued by the Clerk of this Court, requiring the said State Farm Mutual Automobile Insurance Company to answer in the time prescribed by law, interrogatories concerning said indebtedness or property, said interrogatories being hereto attached.

"Affiant further states that Malinda McMillen Franks' judgment against the defendant, Howard Bennett, was for personal injuries caused by the negligence of the said Howard Bennett, in the operation and use of the automobile, and at the time plaintiff received said injuries, the above named Garnishee had issued a policy of insurance covering the liability of the said Howard Bennett as a result of his operation or use of said automobile, by the terms of which said Garnishee became liable to pay any damages thus sustained up to a stipulated amount, and no amount of said liability has been paid."

"/s/ J. I. Pitchford"

Attached to the affidavit were six interrogatories, as follows:

"Interrogatory No. 1: Did the State Farm Mutual Automobile Insurance Company have in force and effect a public liability insurance policy on the Pontiac automobile belonging to Howard Bennett at the time the accident occurred in Okemah, Oklahoma, on April 15, 1957 covering liability for personal injuries resulting from the operation or use of said automobile by the said Howard Bennett.

"Interrogatory No. 2: What is the amount of liability of the State Farm Mutual Automobile Insurance Company for personal injuries provided in said insurance policy.

"Interrogatory No. 3: What is the amount of coverage under said policy for injuries suffered by any one person.

"Interrogatory No. 4: Did the State Farm Mutual Automobile Insurance Company assume the defense of the said Howard Bennett in this action.

"Interrogatory No. 5: Why has the amount of liability of the State Farm Mutual Automobile Insurance Company under said policy not been paid as provided in said policy.

"Interrogatory No. 6: If coverage is found to exist, what is the amount of liability of the State Farm Mutual Automobile Insurance Company for personal injuries under the policy which said company had covering the Pontiac automobile owned and operated by Howard Bennett at the time of the accident causing injury to Malinda McMillen Franks in the City of Okemah, Oklahoma on the 15th day of April, 1957."

On February 21, 1959, the garnishee, State Farm Mutual Automobile Insurance Company, filed in this court a petition for removal, and on the same date filed an answer. In the petition for removal, garnishee alleges as follows: "That said suit is a civil action at law wherein the plaintiff as the judgment creditor of Howard Bennett seeks to recover from your petitioner a money judgment in the amount of $25,000.00, with interest from November 20, 1958, and the court costs attendant to the proceedings which resulted in the judgment in favor of the plaintiff and against Howard Bennett."

The garnishee also alleges that "the plaintiff was and now is a resident and citizen of the State of Oklahoma *...