Ohio Casualty Ins. Co. v. Farmers Bank of Clay, Ky., No. 10852.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtSIMONS, MARTIN and MILLER, Circuit
Citation178 F.2d 570
PartiesOHIO CASUALTY INS. CO. v. FARMERS BANK OF CLAY, KENTUCKY et al.
Docket NumberNo. 10852.
Decision Date12 December 1949

178 F.2d 570 (1949)

OHIO CASUALTY INS. CO.
v.
FARMERS BANK OF CLAY, KENTUCKY et al.

No. 10852.

United States Court of Appeals Sixth Circuit.

December 12, 1949.


178 F.2d 571

John P. Sandidge, Louisville, Ky. (Robert P. Hobson, John P. Sandidge, Woodward, Hobson & Fulton, Louisville, Ky., Woodward, Bartlett, Hobson, & McCarroll,

178 F.2d 572
Owensboro, Ky., on the brief), for appellant

John B. Anderson, Owensboro, Ky., John L. Dorsey, Henderson, Ky. (E. B. Anderson, Owensboro, Ky., J. L. Dorsey, Pentecost & Dorsey, Henderson, Ky., W. Fred Hume, Providence, Ky., J. M. Rayburn, Dixon, Ky., on the brief), for appellees.

Before SIMONS, MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The district court dismissed a declaratory judgment action, brought by the appellant insurer against the appellee bank and the individual appellees. The appellant had issued a bankers blanket bond policy to the Farmers Bank of Clay Kentucky, indemnifying the assured against loss sustained through the dishonest, fraudulent, or criminal actions of its employees, and sought an adjudication of whether the bank is liable to the surviving partner and the estate of the deceased partner in the Farmers Mill in consequence of the alleged dishonest acts of George E. Price, assistant cashier of the bank and agent of the mill. Mary C. Price was joined as a defendant, as administratrix of the estate of George E. Price and in her individual capacity.

From the complaint it appears that Eddie Shelton, deceased, and his brother, Ben Shelton, had prior to March, 1945, operated, as partners under the trade name "Farmers Mill," a grain elevator and mill located in Webster County, Kentucky. In March of 1945, Eddie Shelton died and Mayme Shelton was appointed administratrix of his estate. After Eddie Shelton's death, Ben Shelton continued to operate the mill until around March 1, 1947. The mill did its banking business with the appellee, Farmers Bank. George E. Price had been assistant cashier of the bank and also an agent for the mill; and, acting in the dual capacity, had handled many transactions between the mill and the bank. He died in May, 1947, and Mary C. Price was appointed administratrix of his estate.

On October 9, 1947, Ben Shelton, acting in his capacity as manager of the Farmers Mill, made a claim against the Farmers Bank for $10,127.95, alleging that amount to be due the mill in addition to the sum shown on the bank's books to the credit of the mill. The bank was insured by appellant, which had agreed to indemnify the bank against any loss sustained through the dishonest, fraudulent, or criminal acts of any of its employees. Appellant states in its complaint that the bank's position is that if it is liable to the mill, the insurer is liable to the bank; and that its own position is that the bank is not liable to the mill and, therefore, appellant is not liable to the bank. However, should it be wrong in these contentions, the insurance company avers that it should receive reimbursement from Mary C. Price, as administratrix of the estate of George E. Price, for any loss accruing to it by reason of the bank's liability to the mill in consequence of the dishonest, fraudulent, or criminal acts of George E. Price.

The first amendment to the complaint added that George E. Price was among the employees whose dishonest, fraudulent, or criminal acts were insured against; that the bank, Ben Shelton, and Mayme Shelton, individually and as administratrix of the estate of Eddie Shelton, have made a claim against the insurance company based on Assistant Cashier Price's alleged fraudulent, dishonest and criminal acts in relation to the mill account, which acts caused a shortage in the account and a resulting loss to the claimants of more than $10,000; and that the insurance company denies and controverts this claim.

The complaint sought declaratory judgment as to (1) whether the bank is liable to the mill and, if so, in what amount: (2) whether appellant is liable to the bank for the whole or any part of the amount found to be due by the bank to the mill; and (3) whether George E. Price "was responsible for the loss sustained by the Bank in the Mill account and the loss sustained by this plaintiff through the dishonest, fraudulent, or criminal act or acts of George E. Price, and if so, the amount of such loss so sustained, and if it be adjudged that this plaintiff is liable to the Bank for any loss so caused by George E. Price, that such amount be ascertained and

178 F.2d 573
this plaintiff be given judgment against Mary C. Price, Administratrix of the Estate of George E. Price, and for all proper relief."

The bank and the Sheltons moved to dismiss appellant's original complaint on the ground that the complaint failed to state a claim on which relief could be granted. The motion was sustained; whereupon the court allowed appellant an extension of thirty days in which to file an amended complaint. Appellant failed to tender its first amended complaint until more than a month after expiration of the time fixed by the court, but tender was made before any responsive pleading was filed by any of the defendants. The Sheltons again moved to dismiss. Mary C. Price, individually and as administratrix, made a similar motion on the grounds, first, that no controversy was shown to exist between the Ohio Casualty Company and herself in either capacity; and, second, that sections 396.010 and 396.020 of the Kentucky Revised Statutes provide that no action shall be brought or recovery had against a decedent's estate until a demand, accompanied by verified proof, has been made upon the personal representative, and that no such demand has been made in this case.

The plaintiff tendered a second amendment to its complaint; but both amendments were rejected upon the grounds that no facts were stated therein sufficient to entitle plaintiff to declaratory judgment and that they were not tendered in time.

The original complaint was filed under Title 28 U.S.C.A. § 400, United States Code. This section was superceded by sections 2201 and 2202, which became effective September 1, 1948. For the purposes of this case, the import of the new sections is identical with that of the old.

The district court held that the first amendment to the complaint could not be allowed because it was not filed within the extended time of thirty days allowed by its order; and, of course, that the second amendment was likewise not timely. In its first opinion, the court declared that "the complaint does not set forth that there is any controversy between any plaintiff and any defendant." In its order and judgment, it was recited that, the conclusion having been reached that "the plaintiff has not stated facts sufficient in law in its petition or its amended petition tendered herein...

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24 practice notes
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 30 Septiembre 1953
    ...dismiss is not a "responsive pleading" within the meaning of the rule. Ohio Casualty Ins. Co. v. Farmers Bank of Clay, Ky., 6 Cir., 1949, 178 F.2d 570. See 6 Cyclopedia of Federal Procedure, 3d Ed., Sec. 18.03. The plaintiff has indicated no desire to amend. However, an amendment by the pla......
  • LUMBERMENS MUTUAL CASUALTY COMPANY v. Borden Company
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 4 Enero 1965
    ...plaintiff alleges, and for the purposes of the motion, the allegations are, of course, admitted, (Ohio Cas. Ins. Co. v. Farmers Bank, 178 F.2d 570, 573 (6th Cir. 1949)), that the losses which form the basis of Borden's claims Nos. 6, 9 and 10 were covered by two policies issued by Affiliate......
  • In re Baseball Bat Antitrust Litigation, No. 98-MC-1249-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 28 Octubre 1999
    ...see also Foman v. Davis, 371 U.S. 178, 182-83, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Page 1201 Ohio Cas. Ins. Co. v. Farmers Bank, 178 F.2d 570 (6th Cir.1949) (where no responsive pleading filed when appellant tendered first amendment to complaint, asserted untimeliness of amendment was not v......
  • Winget v. Jp Morgan Chase Bank, N.A., No. 07-1657.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 11 Agosto 2008
    ...pleading. A motion to dismiss is not considered a responsive pleading under Rule 15(a). See Ohio Cas. Ins. Co. v. Farmers Bank of Clay, 178 F.2d 570, 573 (6th Cir.1949). Therefore, to the extent that the Defendants had not responded to the Complaint, Winget was free to file an amended compl......
  • Request a trial to view additional results
24 cases
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 30 Septiembre 1953
    ...dismiss is not a "responsive pleading" within the meaning of the rule. Ohio Casualty Ins. Co. v. Farmers Bank of Clay, Ky., 6 Cir., 1949, 178 F.2d 570. See 6 Cyclopedia of Federal Procedure, 3d Ed., Sec. 18.03. The plaintiff has indicated no desire to amend. However, an amendment by the pla......
  • LUMBERMENS MUTUAL CASUALTY COMPANY v. Borden Company
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 4 Enero 1965
    ...plaintiff alleges, and for the purposes of the motion, the allegations are, of course, admitted, (Ohio Cas. Ins. Co. v. Farmers Bank, 178 F.2d 570, 573 (6th Cir. 1949)), that the losses which form the basis of Borden's claims Nos. 6, 9 and 10 were covered by two policies issued by Affiliate......
  • In re Baseball Bat Antitrust Litigation, No. 98-MC-1249-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 28 Octubre 1999
    ...see also Foman v. Davis, 371 U.S. 178, 182-83, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Page 1201 Ohio Cas. Ins. Co. v. Farmers Bank, 178 F.2d 570 (6th Cir.1949) (where no responsive pleading filed when appellant tendered first amendment to complaint, asserted untimeliness of amendment was not v......
  • Winget v. Jp Morgan Chase Bank, N.A., No. 07-1657.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 11 Agosto 2008
    ...pleading. A motion to dismiss is not considered a responsive pleading under Rule 15(a). See Ohio Cas. Ins. Co. v. Farmers Bank of Clay, 178 F.2d 570, 573 (6th Cir.1949). Therefore, to the extent that the Defendants had not responded to the Complaint, Winget was free to file an amended compl......
  • Request a trial to view additional results

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