Maryland Casualty Co. v. Tighe, 4279-S.

• Decision Date: 11 September 1939
• Docket Number: No. 4279-S.,4279-S.
• Citation: 29 F. Supp. 69
• Parties: MARYLAND CASUALTY CO. v. TIGHE et al.
• Court: U.S. District Court — Northern District of California

29 F. Supp. 69

MARYLAND CASUALTY CO. v. TIGHE et al.

No. 4279-S.

District Court, N. D. California, S. D.

September 11, 1939.

Treadwell & Laughlin, of San Francisco, Cal., for plaintiff.

Young & Ryan, of Oakland, Cal., for defendant Mazilla Tighe.

Charles B. Morris and Carroll B. Crawford, both of San Francisco, Cal., for defendants Ah Chong and Leong Cheung.

ST. SURE, District Judge.

Plaintiff, alleging diversity of citizenship, invokes the Federal Declaratory Judgment Act (28 U.S.C.A. § 400) to have its rights determined under an automobile policy of insurance issued to defendant Ah Chong.

Defendant Mazilla Tighe brought an action in the state court against defendants Ah Chong and Leong Cheung for damages for personal injuries resulting from a collision with her while she was walking along a sidewalk in Sutter Street, San Francisco. Plaintiff had issued a policy of insurance to defendant Ah Chong, a fruit and vegetable peddler, insuring against bodily injury liability and property damage "arising out of the ownership, maintenance or use of the automobile," "including the loading and unloading thereof." (Quoted language from policy.) While the action was pending in the state court, plaintiff brought this suit seeking a declaratory judgment and a preliminary injunction staying the prosecution of the action in the state court. Plaintiff asks this court to declare the rights and legal relations of the parties, and that it decree that plaintiff is under no obligation to defend the action in the state court and not liable under said policy for Mazilla Tighe's injuries. On June 30, 1938, District Judge Walter C. Lindley, presiding, overruled a demurrer to the complaint and allowed a temporary injunction. D.C., 24 F.Supp. 49.

Thereafter trial was had upon the merits, and the questions for decision are (1) whether the District Court has jurisdiction under the declaratory relief act to entertain a suit against defendant Mazilla Tighe; (2) whether the District Court had jurisdiction to grant the preliminary injunction staying trial of the case in the state court; (3) whether plaintiff waived its right to make a defense herein; and (4) whether the state action and injury in question are covered by the policy.

The first three questions may be readily answered in the affirmative. The right of the court to entertain the action is settled by Associated Indemnity Corp. v. Manning, 9 Cir., 92 F.2d 168; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665; Maryland Casualty Co. v. Hubbard, D.C., 22 F.Supp. 697. Section 265 of the Judicial Code (28 U.S.C.A. § 379) places no limitation upon the jurisdiction of the Federal court, and if the complaint discloses a case for the exercise of equitable and injunctive powers an injunction may issue as it did in the present case. Smith v. Apple, 264 U.S. 274, 44 S.Ct. 311, 68 L.Ed. 678; Sovereign Camp, Woodmen of the World, v. O'Neill, 266 U.S. 292, 298, 45 S.Ct. 49, 69 L.Ed. 293; Alliance Insurance Co. of Philadelphia v. Jamerson, D.C., 12 F.Supp. 957; Jamerson v. Alliance Ins. Co. of Phila., 7 Cir., 87 F.2d 253. Because of the view hereinafter expressed upon the coverage question that of waiver becomes immaterial.

The provisions of the policy applicable to coverage are as follows:

"The purposes for which the automobile is to be used are Commercial.

"(a) The term `pleasure and business' is defined as personal, pleasure, family and business use. (b) The term `commercial' is defined as the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in Item 1. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof. * * *

"Coverage A — Bodily injury liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by...