Travelers Insurance Company v. Sindle, Civ. A. No. 1539.

• Decision Date: 23 August 1960
• Docket Number: Civ. A. No. 1539.
• Citation: 186 F. Supp. 8
• Parties: TRAVELERS INSURANCE COMPANY, a corporation, Plaintiff, v. Mrs. Thelma S. SINDLE, Mrs. Thelma S. Sindle, Administratrix of the estate of Argus A. Sindle, Deceased, Betty Jo Sindle, Shelba Jean Sindle, Stasi Motor Freight, Inc., Richard F. Pitts, and M. E. Daniels, d/b/a Rogers Oil Company, Defendants.
• Court: U.S. District Court — Western District of Arkansas

186 F. Supp. 8

TRAVELERS INSURANCE COMPANY, a corporation, Plaintiff, v. Mrs. Thelma S. SINDLE, Mrs. Thelma S. Sindle, Administratrix of the estate of Argus A. Sindle, Deceased, Betty Jo Sindle, Shelba Jean Sindle, Stasi Motor Freight, Inc., Richard F. Pitts, and M. E. Daniels, d/b/a Rogers Oil Company, Defendants.

Civ. A. No. 1539.

United States District Court W. D. Arkansas, Fort Smith Division.

August 23, 1960.

Shaw, Jones & Shaw, Fort Smith, Ark., for plaintiff.

Warner, Warner & Ragon, Fort Smith, Ark., Joyce & Wing, Fayetteville, Ark., Ralph W. Robinson, Van Buren, Ark., Hardin, Barton & Hardin, Fort Smith, Ark., for defendants.

JOHN E. MILLER, Chief Judge.

There is before the court the motion of plaintiff for summary judgment pursuant to Rule 56, Fed.R.Civ.P., 28 U.S. C.A.

Complete diversity of citizenship between the plaintiff and the defendants exists now and has at all times material herein. The amount involved exceeds $10,000, exclusive of interest and costs.

In considering the motion, it is necessary for the court to determine from the pleadings, depositions, admissions on file, the affidavits and ore tenus testimony and exhibits, whether there is a genuine issue as to any material fact. If there is no genuine issue as to any controlling material fact and the moving party is entitled to a judgment as a matter of law, the motion should be granted, but if there appears to be any genuine issue as to a material fact, the motion must be denied.

In Rubenstein v. Dr. Pepper Co., 8 Cir., 1955, 228 F.2d 528, at page 533, the court said:

"The motion for summary judgment is not a trial of the issues but for the purpose of determining whether in fact there are any genuine issues as to material facts. If it is made clearly to appear on such a motion that even though there is an issue under the pleadings there is in fact no dispute as to the controlling material facts, then the court should enter summary judgment."

The complaint of plaintiff for a declaratory judgment of nonliability on the claim of Mrs. Thelma S. Sindle, individually, and as administratrix of the estate of Argus A. Sindle, deceased, on behalf of the estate and next of kin, was filed on June 20, 1960. On July 11, 1960, a pretrial conference was held, which was attended by the attorneys for all parties except the attorney for Mrs. Sindle, individually and as administratrix. At that time the defendant, Stasi Motor Freight, Inc. (hereinafter referred to as Stasi), was allowed until July 22, 1960, to file its response to the motion for summary judgment. Stasi had prior to that time and on June 28, 1960, filed answer to the complaint. At his request the defendant, M. E. Daniels, d/b/a Rogers Oil Company (hereinafter referred to as Daniels), was allowed until July 27, 1960, in which to answer the complaint.

Prior to the first pretrial conference on July 11, 1950, the defendants, Richard F. Pitts and Daniels, had filed their motion for summary judgment on the pleadings and exhibits, and included therein a motion to dismiss the complaint of the plaintiff.

The motion of plaintiff for summary judgment was likewise filed on July 8, 1960.

On July 27 the defendant Stasi filed its response to the motion for summary judgment, and on the same date the defendants Pitts and Daniels filed their answer to the complaint of the plaintiff. No response other than the answer to the complaint was filed to the motion of plaintiff by defendants Pitts and Daniels.

With the record in that condition, the court deemed it advisable to request all the attorneys to complete the record in order that the motion of plaintiff for summary judgment might be determined. Accordingly, on August 2, 1960, the court addressed a letter¹ to all the attorneys.

On the same date the court, in an effort to aid the parties as to procedure, also called the attention of all the attorneys to Marion County Co-Op Ass'n v. Carnation Co., D.C.W.D.Ark.1953, 114 F.Supp. 58, and the decision of the Court of Appeals for the Eighth Circuit appearing in 8 Cir., 1954, 214 F.2d 557, affirming 114 F.Supp. 58.

In accordance with the suggestion of the court contained in the letter appearing in the footnote, another pretrial conference was held on August 15, 1960, at which time Daniels introduced the original policy as Exhibit 1; a letter dated May 29, 1959, addressed to him by Walker Brothers, Inc., general insurance underwriters, to which was attached certain port of entry cards for each of the units insured under the policy (Exhibit 2); and a memorandum addressed to Daniels by an employee of Walker Brothers, Inc., containing a list of the equipment for insertion in the policy (Exhibit 3).

In paragraphs V, VI and VII of the complaint the plaintiff alleged:

"V.

"That on or about the 26th day of May, 1959, plaintiff issued its policy of insurance to the defendant, M. E. Daniels, doing business as Rogers Oil Company, the same being Comprehensive Automobile Liability Insurance Policy No. SLA 4739938, insuring said defendant against damages imposed by law for injuries or death to individuals or damage to property caused by automobiles and motor vehicles scheduled in said policy and used in his business by himself or agents and employees of his; subject to the limitations and restrictions on such liability as set out in said policy. That among other vehicles scheduled in said policy, there appeared one 1954 year model, International tractor, 5 CA, Serial No. (Motor No.) RD 45037950. That among other limitations on the liability under said policy were the limitations and restrictions on liability effected and expressed by the Endorsement No. 1721A(a6) issued under date of May 26, 1959, the same being attached to and a part of said policy from the date of its issue and the date of said policy and on all the days and dates mentioned herein. That said endorsement is in words and figures as follows:

"`Truckmen

(Insurance for Non-Trucking use)

"`Such insurance as is afforded by the policy for Bodily Injury Liability, for Automobile Medical Payments and for Property Damage Liability with respect to any automobile described below or designated in the policy as subject to this endorsement, does not apply:

"`(a) to any person or organization, or any agent or employee thereof, other than the named insured, engaged in the business of transporting property by automobile for others;

"`(b) while the automobile or any trailer attached thereto is used to carry property in any business;

"`(c) while the automobile is being used in the business of any person or organization to whom the automobile is rented.'

That as aforesaid the restrictions on liability as expressed in said endorsement and as hereinabove set out were in full force and effect and a part and parcel of said policy at all times mentioned herein.

"VI.

"That on and prior to July 8, 1959, the defendant, M. E. Daniels, doing business as Rogers Oil Company, and hereinafter referred to as `Daniels', leased to the defendant, Stasi Motor Freight, Inc., hereinafter referred to as `Stasi', the above described tractor. On or about July 8, 1959, at approximately 11:00 o'clock P.M., the said tractor was involved in an accident at a time when it was being operated under said lease agreement by the said defendant Stasi acting by and through its servant, agent and employee, Richard F. Pitts, as the driver thereof. That at said time and place the tractor was being operated in the service of the said defendant Stasi, who was and is a common carrier, and was transporting property for hire in said service.

"VII.

"That on said date of July 8, 1959, at approximately 11:00 P.M., the said tractor then being operated by the said Richard F. Pitts as the agent, servant, and employee of the defendant Stasi, was involved in an accident as aforesaid on Highway 71 in Crawford County, Arkansas, with a motor vehicle then being operated by Argus A. Sindle. That as a result of said accident, the said Argus A. Sindle received injuries and as a consequence thereof later died. That accompanying the said Argus A. Sindle in said motor vehicle at the time of the collision were the minor defendants, Betty Jo Sindle and Shelba Jean Sindle, and they received personal injuries."

It was further alleged that defendant, Mrs. Thelma S. Sindle, individually and as administratrix of the estate of Argus A. Sindle, deceased, for the benefit of herself, the estate of the deceased and the next of kin, filed her complaint in the Crawford County Circuit Court against Stasi, Daniels and Richard F. Pitts, seeking damages on account of the injuries and death of the said Argus A. Sindle. Attached to the complaint is a copy of the various pleadings filed by the parties in the Circuit Court. It does not appear necessary to refer further to the pleadings in the State Circuit Court as to the issues between the various parties made by the pleadings in the case.

That upon the filing of the said complaint in the Circuit Court, the defendants Daniels, as the named insured, and Pitts, as an alleged agent of Daniels, tendered liability thereunder, if any, to the plaintiff by virtue of said policy hereinbefore referred to; that the plaintiff is under no duty to defend and is under no liability for any cause of action as set out in the suit in the Circuit Court or on account of the accident; that all of the acts of the parties involved in said accident and said accident were wholly without the terms of said liability insurance policy, and all liability under and by virtue of same are excluded from the policy; that upon the tender of the defense of said case by the defendants Daniels and Pitts, the plaintiff addressed by registered mail its letter reserving all its rights under its policy and that such action on the part of the plaintiff was effective to reserve to it all its rights as expressed in said policy.

In the answer filed by Stasi, the defendant admitted that prior to July 8, 1959, the date of the accident, Daniels...