State Automobile Ins. Ass'n v. Parry

• Decision Date: 13 November 1941
• Docket Number: No. 12079.,12079.
• Citation: 123 F.2d 243
• Parties: STATE AUTOMOBILE INS. ASS'N v. PARRY.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 243 (1941)

STATE AUTOMOBILE INS. ASS'N v. PARRY.

No. 12079.

Circuit Court of Appeals, Eighth Circuit.

November 13, 1941.

Neill Garrett, of Des Moines, Iowa (Ben J. Gibson, Walter L. Stewart, Wendell B. Gibson, and Robert C. Waterman, all of Des Moines, Iowa, on the brief), for appellants.

Burton Dull, of Le Mars, Iowa (C. Morse Hoorneman, of Le Mars, Iowa, on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The question presented by this appeal is whether the court below had jurisdiction of this suit upon the ground that it arose under the Motor Carrier Act of 1935, 49 Stat. 543, 49 U.S.C.A. § 301 et seq., and was therefore a suit which arose "under the Constitution or laws of the United States", 28 U.S.C.A. § 41(1), and under a law "regulating commerce", 28 U.S.C.A. § 41(8).

The suit is one for a declaratory judgment, 28 U.S.C.A. § 400, brought by the appellants against the appellee and others to secure a declaration of the nonliability of the State Automobile Insurance Association, and inter-insurance exchange (hereinafter called the insurer), under a policy of automobile liability insurance issued by Automobile Underwriters, as attorney in fact for the insurer, to Lyle Mendenhall with respect to a truck owned by him.

The question of jurisdiction is to be determined from the complaint. Jewell v. Cleveland Wrecking Co., 8 Cir., 111 F. 2d 305, 306, and cases cited.

The complaint shows: That the insurer on October 13, 1939, through its attorney in fact, issued to Mendenhall (a defendant in the court below) its policy of liability insurance covering damage to persons or property caused by the operation of the truck described in the policy, except when the truck was being operated more than 300 miles from Imperial, Nebraska. That Mendenhall procured from the Interstate Commerce Commission a certificate under the Motor Carrier Act of 1935 authorizing him to operate as a common carrier of property by motor vehicle between Imperial, Nebraska, and Denver, Colorado. That, in order to secure this certificate, Mendenhall was required, by § 215 of the Motor Carrier Act, 49 U.S.C.A. § 315, to have a policy of liability insurance "conditioned to pay * * * any final judgment recovered * * * for bodily injuries to or the death of any person resulting from the negligent operation * * * of motor vehicles under such certificate * * *, or for loss or damage to property of others," in conformity with the rules and regulations of the Interstate Commerce Commission. That the insurer attached to Mendenhall's policy an endorsement or rider in the form required by the Commission, which endorsement stated that it was attached to the policy "to assure compliance by the insured, as a motor carrier of property, with Section 215 of the Motor Carrier Act, 1935, and the pertinent rules and regulations of the Interstate Commerce Commission." That the endorsement bore the same date as the policy, October 13, 1939. That on January 15, 1940, the insured truck while being driven by Fred Swink (a defendant in the court below) collided with an automobile driven by W. G. Anderson (also a defendant in the court below). That the accident occurred on an Iowa highway near Dennison, Iowa, and more than 300 miles from Imperial, Nebraska. That as a result of the accident, two suits were commenced in a state court of Iowa against Mendenhall, one by W. G. Anderson for $2,936 and one by the appellee, Ellsworth Parry, Administrator of the estate of Evan Parry, deceased, for $5,447.85. That Mendenhall claims that the policy issued to him by the insurer covers his liability, if any, to Anderson and to Parry, administrator, and that the insurer is obligated to defend the suits brought by them against Mendenhall. That Anderson and Parry claim that the policy covers Mendenhall's liability to them, "because of the provisions of the Motor Carrier Act of the United States of 1935, and endorsement form No. B.M.C. 31 the endorsement form attached to the policy promulgated by the Interstate Commerce Commission pursuant to the authority and provisions of Sec. 215 of said Motor Carrier Act and the rules and regulations of the Interstate Commerce Commission applicable thereto." That the insurer claims that the rules and regulations of the Interstate Commerce Commission and the endorsement attached to the policy in the form required by the rules and regulations were ineffective unless the insured truck was being used as a common carrier of property in accordance with the certificate issued by the Commission to Mendenhall. That at the time of the collision the truck was not being so used and was not upon any route over which Mendenhall was authorized to operate, and that the truck was being used by Mendenhall and his driver, Swink, for Mendenhall's own private purposes.

The appellants...