Before DUFFY, Chief Judge, and MAJOR and HASTINGS, Circuit Judges.
Robert D. Voelker, a Sergeant in the Illinois National Guard, was sued in the State Court of Minnesota for damages allegedly sustained as the result of a collision between a truck driven by Voelker and an automobile driven by plaintiff in that action. Voelker instituted the present suit in the Superior Court of Cook County, Illinois, for a declaratory judgment, praying for a determination that he was covered by a policy of insurance issued by Travelers Indemnity Company and that it was obligated to take over the defense of the Minnesota suit.The case was appropriately removed to the District Court for the Northern District of Illinois on the ground of diversity of citizenship, with the requisite jurisdictional amount.
The policy of insurance was issued for one year, commencing July 31, 1955. Voelker was the named insured and the automobile covered was described as "1 - 1953 Pontiac 2 Door Sedan." In July 1956, Voelker went to Minnesota with the National Guard to participate in summer military maneuvers. On July 19, 1956, he was driving in a military convoy a truck which collided with an automobile operated by a civilian, which gave rise to the suit in Minnesota, as noted.
The District Court by its order of April 2, 1958, entered in connection with a memorandum, held in favor of defendant and ordered a dismissal of plaintiff's action. From this order plaintiff appeals.
Plaintiff in this Court is represented by the Attorney General of Illinois who by statute is charged with the duty of representing National Guardsmen in actions arising out of accidents occurring while such Guardsmen are on active duty. Ill.Rev.Stat.1957, ch. 129, § 271.
Plaintiff relies upon the following policy provision:
"If the named insured is an individual * * * and if during the policy period such named insured owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under Coverages A, B, D and F, with respect to said automobile apply with respect to any other automobile * * *."
Defendant contends that liability is excluded by other provisions of the same policy, particularly:
"* * * (d) This insuring agreement does not apply:
"(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse * * *"
and "(3) under Coverages A, B, or D, to any automobile while used in a business or occupation of such named insured or spouse except a private passenger automobile operated or occupied by such named insure, spouse, private chauffeur or domestic servant * * *."
It will be noted that the insuring clause covers "a private passenger automobile" and that the protection afforded applies with respect "to any other automobile." It is suggested that the phrase, "to any other automobile," should be construed as including only another passenger automobile. This suggestion, however, is not pressed and we think that "any other automobile" includes a truck as well as a passenger automobile. Thus, defendant if it is to escape liability must come within the exclusory language of the policy. The question under paragraph 1 of the exclusion clause is whether the truck driven by plaintiff at the time of the collision was "furnished for regular use" by him (the named insured), and under paragraph 3, whether the truck at the time of the collision was "used in a business or occupation of such named insured." If both or either of these questions are answered in the affirmative, defendant is absolved of liability.
It appears material to set forth some of plaintiff's activities as a member of the National Guard, which he joined in 1949.. In 1952, he received a military driver's license qualifying him to drive military vehicles of various sizes and types. He was required to attend school in order to qualify as a driver of such vehicles. The National Guard has various activities, meets every week and frequently participates in firing practice and parades. Plaintiff and other members each year attend a two-week summer encampment. In 1956, the encampment was held at Camp Riley, Minnesota, a three-day trip from Chicago.On July 19, 1956, plaintiff while makin the three-day return trip was operating a two and one-half ton military vehicle with a one ton trailer attached, in a military convoy operating under ...