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TRAVELERS INSURANCE COMPANY v. SINDLE

August 23, 1960

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.



The opinion of the court was delivered by: 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 letter*fn1 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 ...

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