Hawkeye Casualty Co. v. Rose, 14054.

• Decision Date: 21 April 1950
• Docket Number: No. 14054.,14054.
• Citation: Hawkeye Casualty Co. v. Rose, 181 F.2d 157, 72 A.L.R. 1414 (8th Cir. 1950)
• Parties: HAWKEYE CASUALTY CO. v. ROSE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F.2d 157 (1950)

HAWKEYE CASUALTY CO. v. ROSE et al.

No. 14054.

United States Court of Appeals Eighth Circuit.

April 21, 1950.

Roy F. Carter, Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles, Kansas City, Mo., were on brief for appellant.

Julian M. Levitt, Bernard T. Hurwitz and Eugene Taxman, Kansas City, Mo., were on brief for appellees.

Before GARDNER, Chief Judge, and JOHNSEN and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

The question for decision in this case is whether the appellee David Rose is entitled to protection under a liability insurance policy issued by appellant, Hawkeye Casualty Company. The parties will be referred to as they were designated in the trial court. The essential facts are not in dispute and so far as here material they may be stated as follows:

Defendant David Rose purchased a new Dodge automobile in 1940 and had the title thereto taken in the name of his wife Bell Rose. This automobile was stolen from a parking lot in Kansas City, Missouri, about March 13, 1947. In May, 1947, it was recovered by the police in Brooklyn, New York, and at about the same time a policy of automobile liability insurance covering this automobile was issued by plaintiff, naming Bell Rose as the insured. At the time the car was reported as recovered Bell Rose was seriously ill and her husband, David Rose, with the knowledge and consent of his wife, arranged with the defendants Stanley H. Schwartz and Lillian G. Schwartz, who were then in New York City, to drive the car back to Kansas City. To enable the defendants Schwartz to get possession of the car from the New York police for the purpose of driving it back to Kansas City, Bell Rose signed a written authorization acknowledged before a Notary Public, authorizing them to take possession of the automobile. Pursuant to this authorization they obtained possession of the automobile and advised David Rose by letter that certain tools were missing from the car. Stanley H. Schwartz and his wife, Lillian, subsequently drove the car from New York City but while enroute were injured in an accident when the automobile went off the highway near Columbia, Missouri, on June 2, 1947. Upon being advised of the accident David Rose notified plaintiff. On September 12, 1947, an action was brought in the Circuit Court of Jackson County, Missouri, by defendant Stanley H. Schwartz against David Rose for injuries to himself and for loss of the services of his wife because of injuries resulting from the alleged negligence of David Rose in failing to reveal certain latent defects in the car of which he had knowledge and of which Mr. and Mrs. Schwartz were ignorant. Plaintiff undertook the defense of that action without reservation, prepared and filed an answer on behalf of David Rose, took depositions in preparation for trial, and represented David Rose by counsel of its selection. Its attorneys continued in charge of the defense of the State Court action until it brought the present suit against both parties to the action in the State Court with Mrs. Schwartz added. The present suit was filed more than ten months after the action in the State Court was instituted. In the present suit plaintiff seeks a declaratory judgment to the effect that "there is no obligation owed by this plaintiff to any of the defendants." This suit was brought and tried by plaintiff on the theory that the terms of the policy were not broad enough to protect David Rose.

The policy named Bell Rose as the insured and the owner of the car. The coverages were for "bodily injury liability" and "property damage liability." There were other provisions covering liability for contingencies not here involved. The insurance clause contains the following:

"Name of Insured: Bell Rose (Wife 61: Husband 60: Husband Drives)

Address: Villa Serena Apts., 325 Ward Parkway, Kansas City, Missouri.

* * * * * *

Occupation of Insured is Housewife. Husband, Dave Rose, Retired.

* * * * * *"

Under the heading "Insuring Agreements" appears the following:

"III Definition of `Insured'.

The unqualified word `insured\' wherever used in coverages A and B in other parts of this policy * * * includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person * * * legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured:"

This provision was followed by certain exceptions not here pertinent.

The trial court found the issues in favor of the defendants and found specifically that the possession of the automobile "by the defendants Stanley H. Schwartz and Lillian G. Schwartz on June 2, 1947, was for and on behalf of the defendant David Rose, and that the use of said automobile by the said David Rose was with the permission of the named insured," and entered judgment dismissing plaintiff's complaint. In seeking reversal plaintiff contends that the court erred in making these findings and in dismissing the suit.

Manifestly, the word "insured" as used in the policy was not intended by the parties to be limited to Bell Rose. Had that been the intent of the parties there would have been no necessity for defining the word "insured." The policy was written on a form prepared by plaintiff and the quoted paragraph should be given some meaning. It included the named insured and certainly it was intended to include others besides the named insured. These others are described as "any person while using the automobile and any person * * * legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured." David Rose is named in the policy as a driver of the car and as the husband of Bell Rose. He, in fact purchased the car and he habitually drove it. He with the consent of the owner, secured possession of the car from the New York police...