Hagerhorst v. Indemnity Ins. Co. of North America

• Decision Date: 09 November 1939
• Docket Number: No. 10566.,10566.
• Citation: 30 F. Supp. 152
• Parties: HAGERHORST v. INDEMNITY INS. CO. OF NORTH AMERICA et al.
• Court: U.S. District Court — Eastern District of Missouri

30 F. Supp. 152

HAGERHORST v. INDEMNITY INS. CO. OF NORTH AMERICA et al.

No. 10566.

District Court, E. D. Missouri, E. D.

November 9, 1939.

Erwin F. Vetter, of St. Louis, Mo., for plaintiff.

A. A. Alexander and Albert Miller, both of St. Louis, Mo., for defendants.

MOORE, District Judge.

This action, in this Division of this Court, is a suit in Equity for specific performance of a contract of insurance wherein the defendant, Indemnity Insurance Company of North America, agreed with the assured, Independent Truck Lines, Inc., as respects bodily injuries and property damage accidently suffered, or alleged to have been suffered, by any person or persons during the term of the policy, resulting from the ownership, maintenance, or use of any of the automobiles described in the declarations, and also as respects direct loss or damage to any such automobile or automobiles when accidently sustained as follows:

(A) To pay, within the limits specified within the declarations, any loss by reason of the liability imposed by law upon the assured arising out of such bodily injuries or death of the injured;

(B) To repay to the assured the expenses incurred in providing such immediate surgical relief as is imperative at the time of the accident;

(C) To pay, within the limit specified in the declarations, any loss by reason of the liability imposed by law upon the assured for such damage or destruction of property, including loss of use of such property, damaged or destroyed;

(D) To pay to the assured the actual loss incurred, not exceeding the actual loss of the suitable repair or replacement, by reason of damage to or destruction of any automobile or automobiles, described in said insurance policy, including operating equipment while attached thereto, if caused solely by accidental collision with another object, either moving or stationary, or by upset, excluding, however, damage or destruction by fire from any cause whatsoever.

These further provisions are contained in the policy and the company agreed, as respects certain sections in the policy, when covered:

1. To defend in the name and on behalf of the assured, Independent Truck Lines, Inc., all claims or suits for such injuries for which the said assured is, or is alleged to have been liable.

2. To pay all costs and expenses incurred with the company's written consent;

3. To pay all court costs taxed against the assured in any such suit, including premiums on attachment or appeal bonds.

4. To pay all interest accruing upon that part of any judgment which is the limit of the company's liability in any such suit, up to the date of the payment or tender to the judgment creditor, or to his attorney of record, of the amount for which the company is liable.

There is contained also in the policy the following clause, commonly called "the No Action Clause", which reads as follows: "No action shall lie against the Company until the amount of damages for which the Assured is liable by reason of any casualty covered by this Policy is determined, either by final judgment against the Assured or by agreement between the Assured and the plaintiff with the written consent of the Company, nor in either event unless instituted within two years after the date of such judgment or agreement."

The plaintiff, Charles H. Hagerhorst, is a citizen and resident of Missouri, and the defendant, Indemnity Insurance Company of North America, is a corporation organized and existing under and by virtue of the laws of Pennsylvania, and as such is a citizen and resident of the State of Pennsylvania. This suit and action was originally filed in the Circuit Court of the City of St. Louis, Missouri, on the 27th day of August, 1933, and was pending in said Circuit Court of the State of Missouri, when it was duly removed, by the defendant, Indemnity Insurance Company of North America, to this District Court of the United States, in September, 1933.

After the policy of insurance was issued by the Indemnity Insurance Company of North America, and delivered to the assured, Independent Truck Lines, Inc., and on or about the 15th day of November, 1929, the plaintiff claims he was injured in the City of St. Louis, State of Missouri, by being struck and run against by an automobile in the possession and under the control and management of the assured, Independent Truck Lines, Inc., and which said automobile plaintiff claims was covered by and insured under the terms of said policy of insurance.

Thereafter, and on or about the 22nd day of January, 1931, plaintiff instituted an action in the Circuit Court of the City of St. Louis, Missouri, against the defendant, Independent Truck Lines, Inc., said suit and action being No. 164673, of the files and records of the Circuit Court of the City of St. Louis, Missouri, the general object and nature of which said suit was to recover damages for personal injuries sustained by the plaintiff as a result of said collision with the automobile of said Independent Truck Lines, Inc., on or about November 15, 1929. This suit was thereafter by the therein named defendant, Independent Truck Lines, Inc., removed to the District Court of the United States, within and for the Eastern Division of the Eastern Judicial District of Missouri, in April, 1931, and was pending in said District Court until May, 1932, when said suit was dismissed by order of court for failure on the part of plaintiff to secure the costs therein. Thereafter and on or about the 3rd day of February, 1931, and prior to the filing of the suit at bar, the Independent Truck Lines, Inc., was adjudicated a bankrupt and discharged in bankruptcy, although plaintiff, Hagerhorst's claim for damages was not scheduled in said bankruptcy proceedings. Thereafter, and on the 7th day of January, 1933, by an action duly had in the Circuit Court of Sangamon County, in the State of Illinois, the said corporation, Independent Truck Lines, Inc., was, by decree duly made and entered in said court, duly dissolved. There was offered and admitted in evidence in this case a provision of the Revised Statutes of the State of Illinois then in full force and effect as follows: "The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by the decree of a court of equity when the court has not liquidated the assets and business of the corporation, or (3) by expiration of its period of duration, shall not take away or impair any remedy given against such corporation, its directors, or shareholders, for any liability incurred prior to such dissolution if suit thereon is brought and service of process had within two years after the date of such dissolution. Such suits may be prosecuted against and defended by the corporation in its corporate name." Ill.Rev.Stat.1939, c. 32, § 157.94.

It is alleged in plaintiff's second amended complaint filed herein and admitted by defendant Indemnity Insurance Company of North America's amended answer thereto, that said corporation, Independent Truck Lines, Inc., is not and was not, at the time of the filing of this suit, in existence, and that process of law cannot be served upon it; and these facts are established by the evidence in the case. The assured, Independent Truck Lines, Inc., in said contract of insurance has not been made a party to this action, either in this cause or in the cause No. 10566-A, pending on the law side of this court, in Division No. 1 hereof.

Plaintiff at no time obtained a judgment against the assured, Independent Truck lines, Inc., nor did the assured, Independent Truck Lines, Inc., ever become indebted to plaintiff by agreement between plaintiff and assured, Independent Truck Lines, Inc., with the written consent of the insurer, Indemnity Insurance Company of North America, and no claim or suit in the name, or on behalf, of plaintiff, against, in the name and on behalf of, the assured, Independent Truck Lines, Inc., is now pending to recover for any injuries or damages for which the assured is, or is alleged to have been,...