Powell v. Home Indemnity Company

• Decision Date: 24 May 1965
• Docket Number: No. 17592.,17592.
• Citation: 343 F.2d 856
• Parties: Robert C. POWELL, J. W. Bateson Company, Inc., a Corporation, and Liberty Mutual Insurance Company, a Corporation, Appellants, v. The HOME INDEMNITY COMPANY, a Corporation, Shaw and Sons Equipment Rental, Inc., a Corporation, Bernice I. Rogers and Leonard W. Rogers, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

343 F.2d 856 (1965)

Robert C. POWELL, J. W. Bateson Company, Inc., a Corporation, and Liberty Mutual Insurance Company, a Corporation, Appellants, v. The HOME INDEMNITY COMPANY, a Corporation, Shaw and Sons Equipment Rental, Inc., a Corporation, Bernice I. Rogers and Leonard W. Rogers, Appellees.

No. 17592.

United States Court of Appeals Eighth Circuit.

April 19, 1965.

Rehearing Denied May 24, 1965.

COPYRIGHT MATERIAL OMITTED

Reed O. Gentry, of Rogers, Field & Gentry, Kansas City, Mo., for appellant.

Lowell L. Knipmeyer, of Knipmeyer, McCann & Millett, Kansas City, Mo., for appellees.

Lowell L. Knipmeyer and John A. Borron, Jr., of Knipmeyer, McCann & Millett, Kansas City, Mo., on the brief for Home Indemnity Co. and Shaw and Sons Equipment Rental, Inc.

John C. Risjord, Kansas City, Mo., for Bernice I. Rogers and Leonard W. Rogers.

Before MATTHES and RIDGE, Circuit Judges, and HANSON, District Judge.

HANSON, District Judge.

This is a declaratory action brought by Robert C. Powell, J. W. Bateson Company, Inc. and Liberty Mutual Insurance Company, as plaintiffs and appellants, against Home Indemnity Company, Shaw and Sons Equipment Rental, Inc., Bernice I. Rogers and Leonard W. Rogers.

On or about September 25, 1959, a truck owned by Shaw and Sons and leased by Shaw and Sons to J. W. Bateson Company was being driven by Robert C. Powell as an employee of Bateson.

On the same day, September 25, 1959, this truck being driven by Powell struck the rear of an automobile occupied by Bernice I. Rogers and Leonard W. Rogers.

J. W. Bateson is the named insured in an insurance policy issued by Liberty Mutual Insurance Co. and Shaw and Sons Co. is a named insured in an insurance policy issued by Home Indemnity.

The effect of the trial court's Memorandum and Order is that Powell and Shaw and Sons Co. are additional insureds under the Liberty Mutual policy and that Bateson and Powell are additional insureds under the Home Indemnity policy. That determination is not questioned on this appeal.

The serious question on this appeal is whether both insurers afford primary coverage to the insureds or whether only one does, and if so, which one. The trial court found that Home Indemnity was only excess and not primary insurance. This court cannot agree.

The "Other Insurance" clauses in the policies read as follows:

The Liberty Mutual policy states:

"Other Insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the maintenance or use of any hired automobile insured on a cost of hire basis or the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance."

The Home Indemnity policy states:

"Other Insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the maintenance or use of any hired automobile insured on a cost of hire basis or the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance."

The general rule is that the policy insuring the liability of the owner of a described vehicle has the first and primary coverage. The exception to this rule is that coverage is apportioned between the two insurance policies if the excess clauses in the two policies are repugnant. 76 A.L.R.2d 502. The Missouri courts follow these rules. In Arditi v. Massachusetts Bonding & Insurance Co. et al., 315 S.W.2d 736 (Mo.), the exception was applied. In Fidelity & Casualty Co. of New York v. Western Casualty & Surety Co., 337 S.W.2d 566 (Mo.App.), the general rule was applied. This position has been reaffirmed in State Farm Mutual Auto. Ins. Co. v. Mid-Continent Casualty Co., 378 S.W.2d 232 (Mo. App.). By applying those rules to this case, Home Indemnity is certainly a primary insurer. The Home Indemnity policy is the policy of the undisputed owner, Shaw and Sons Co. The indemnity contract was between two insureds of Home Indemnity, i. e., the named insured, Shaw and Sons, and the omnibus insured, Bateson. This being the case, we do not see how it could have the very substantial effect on the Home policy attributed to it by the trial court. It could not so materially affect the obligations of Home Indemnity.

We find nothing incorrect about the trial court's determination that Liberty Mutual is a primary insurer. Liberty Mutual insured Bateson. "Hired automobile" in this policy means hired automobile insured on a cost of hire basis. National Surety Corp. v. Western Fire & Indemnity Co., 318 F.2d 379 (5th Cir.). That being so the clause does not apply. It is not contended that it was insured on that basis.

Whether Bateson was an owner within the meaning of the Liberty Mutual policy is a question of fact. For a clear example see State Automobile & Casualty Underwriters v. Farm Bureau Mutual Ins. Co., Iowa, 131 N.W.2d 265, together with Cass Bank & Trust Co. v. National Indemnity Co., 326 F.2d 308, 312 (8th Cir.). Evidence on this question included the long term lease, see Proctor v. Hannibal & St. J. R. Co., 64 Mo. 112, 123; Baltimore & O. R. Co. v. Walker, 45 Ohio St. 577, 16 N.E. 475; Camp v. Rogers, 44 Conn. 291, 298, and an agreement to assume legal liabilities which may arise from use of the property. For a clear example of this, see Moore v. Palmer, 350 Mich. 363, 86 N.W. 2d 585.

In Cleo Syrup Corporation v. Coca-Cola Company (8 Cir.), 139 F.2d 416, 150 A.L.R. 1056, the court said:

"This Court, upon review, will not re-try issues of fact or substitute its judgment with respect to such issues for that of the trial court. Storley v. Armour & Co., 8 Cir., 107 F.2d 499, 513; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mut. Casualty Co. v. Rector, 8 Cir., 138 F. 2d 396, 398. The power of a trial court to decide doubtful issues of fact is not limited to deciding them correctly. Thompson v. Terminal Shares, Inc., 8 Cir., 89 F.2d 652, 655; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701 (affirmed 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251); Travelers Mutual Casualty Co. v. Rector, supra. In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra."

The Liberty Mutual policy is a contract between that Company and its insureds. The trial court in construing the word "owner" must take the meaning most favorable to the insured. Giokaris v. Kincaid, 331 S.W.2d 633, 639, 86 A.L. R.2d 925 (Mo.); State Farm Mutual Auto. Ins. Co. v. Mid-Continent Casualty Co., supra. Although the word "owner" is held to be ambiguous, see American Indemnity Company v. Davis, 5 Cir., 260 F.2d 440, 442, whether or not we should consider it so is not, however, conclusive of the issue in this case. The plain and reasonable meaning of the word as applied to motor vehicles includes not only absolute estates but also includes estates less than absolute. Baltimore & O. R. Co. v. Walker, supra, Moore v. Palmer, supra; Proctor v. Hannibal & St. J. R. Co., supra; Camp v. Rogers, supra; State Automobile & Casualty Underwriters v. Farm Bureau Mutual Ins. Co., supra; American Indemnity Co. v. Davis, supra; Fouquette v. Millette, 310 Mass. 351, 37 N.E.2d 1008; Vol. 30 Words and Phrases, pp. 616-621. Most significantly the insurance companies consistently contend for this interpretation. See Lalos v. Tickler, 103 N.H. 292, 170 A.2d 843; 83 A.L.R.2d 926, section 5.

The trial court did not rule on the issue of reformation. Home contended that its policy should be reformed to exclude the omnibus insureds Bateson and Powell and give full effect to the indemnity agreement. For reformation, it is necessary to show that the instrument failed through mutual mistake, fraud, or concealment to express the real intention of the parties. Commercial Standard Ins. Co. v. Maryland Casualty Co., 248 F.2d 412 (8th Cir.) (Mo.); C. S. Foreman Co. v. Great Lakes Pipe Line Co., 274 F.2d 61 (8th Cir.) (Mo.). There is no appeal by the appellees on that issue. Because of the limitations on the right of this court to make findings of fact, there is nothing to review on the question of reformation.

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