Ohio Casualty Ins. Co. v. Marr
| Decision Date | 28 September 1938 |
| Docket Number | No. 1657.,1657. |
| Parties | OHIO CASUALTY INS. CO. v. MARR et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Raymond G. Brown, of Oklahoma City, Okl. (Hal Crouch, of Tulsa, Okl., on the brief), for appellant.
Harry Campbell, Jr., of Tulsa, Okl. (Harry Campbell and Valjean Biddison, both of Tulsa, Okl., on the brief), for appellees Anna M. Marr and Shelby W. Marr.
B. A. Hamilton of Tulsa, Okl. (S. J. Clendinning, of Tulsa, Okl., on the brief), for appellee William H. Gaffney.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
This is an action which has for its purpose a declaratory judgment under section 274d of the Judicial Code, 28 U.S.C.A. § 400.
The Ohio Casualty Insurance Company issued its policy of automobile liability insurance covering an automobile owned by Anna M. Marr. The contract required the company to investigate all accidents covered by the policy, to defend in the name and on behalf of the insured any suit brought to enforce a claim for damages suffered or alleged to have been suffered whether such claim be groundless or not, and to pay all sums which she should become obligated to pay as damages for death or personal injuries from accident arising out of the ownership, maintenance, or use of the automobile, not to exceed $10,000 for death or injuries suffered by one person in a single accident; and the coverage was expressly extended to any person or persons, except a chauffeur or domestic servant, while legally operating the automobile with the consent of the owner. It was provided as a condition precedent to liability that upon the occurrence of any loss or accident, irrespective of whether injury or damage be apparent at the time, immediate written notice thereof be given to the company with the fullest information obtainable at the time; that in the event claim be made on account of any accident the insured give like notice thereof with the fullest particulars immediately after such claim is made; and that if any suit be instituted against the assured to enforce such claim she immediately forward to the company each summons or other process as soon as it shall have been served.
The company instituted this suit against Anna M. Marr, Shelby W. Marr, and William H. Gaffney, administrator of the estate of William Orville Gaffney, deceased. Diversity of citizenship, the requisite amount involved to confer jurisdiction, the existence of the policy, and its pertinent provisions were formally alleged. It was then averred that on January 26, 1936, while the policy was in effect, Shelby W. Marr left a night club near Tulsa, Oklahoma, at about 5:45 o'clock in the morning, driving the automobile with the consent of the owner; that it became involved in an alleged accident; that such alleged accident resulted in a suit being filed in the District Court of Tulsa County by William H. Gaffney, administrator of the estate of William Orville Gaffney, deceased, against Shelby W. Marr to recover damages in the sum of $50,000 for the alleged wrongful death of the deceased; that notwithstanding such alleged accident resulting in the immediate death of the deceased, no notice thereof was given to the company until on or about April 28, 1937; and that a controversy existed between the company and all of the defendants in that it was the contention of the company that the policy had been violated and was void as to all persons by reason of the failure of Anna M. Marr and Shelby W. Marr to notify the company of such accident immediately thereafter, and for such breach the company was not bound or obligated to provide a defense in the name and on behalf of Shelby W. Marr in the action pending in the state court or to pay within the limits of liability specified in such policy any judgment or judgments which might be recovered against the Marrs, that it was the position of the Marrs that the policy was in force and that the company was bound and obligated to provide a defense in the suit and to pay any judgment or judgments thereafter rendered against them, and that it was the position of the administrator that the policy was in effect and that upon recovery of judgment in the state court he would be entitled to proceed against the company to reach the proceeds of such policy. It was further alleged that Shelby W. Marr was financially unable to respond in damages for the alleged wrongful death of the deceased; that it was the plan of the administrator to pursue the company for the collection of any judgment or judgments he might recover; that the company was ready and willing to carry out the provisions of the contract should the court declare that it had not been violated but was still in effect; and that for the purpose of preventing a multiplicity of suits it was imperative that a declaratory judgment be entered defining and declaring the rights, legal relations, and status of the parties. A decree was prayed declaring that the contract was void in respect of the claim and suit arising out of the alleged accident, and that the company was not bound or obligated to provide a defense in the suit pending in the state court, or to pay a judgment, interest, or cost in such suit.
The Marrs answered. They denied that the automobile had been involved in any accident; admitted that no notice was given on January 26, 1936, for the reason that there was no accident of which notice could be given, and further that notice was immediately given when they learned on April 28, 1937, that the administrator was asserting that there had been an accident resulting in the death of the deceased; and affirmatively alleged that the policy was in force, and that the company was obligated to provide a defense in the...
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