Hastings, Senior Circuit Judge, Campbell, Senior District Judge,*fn* and Morgan, District Judge.*fn*
HASTINGS, Senior Circuit Judge.
The Home Indemnity Company (Home) brought this diversity declaratory judgment action against Twin City Fire Insurance Company (Twin City), Parker G.M.C. Truck Sales, Inc. (Parker Truck), Oley Thorpe and Mary Cook. It sought thereby to determine whether Home or Twin City insured Rex L. Imlay, the driver of a certain 1966 Mack tractor at the time it was involved in an accident in Indianapolis, Indiana. This question, in turn, is answered by determining who owned the Mack truck at the time of the accident.
Home was the liability insurance carrier for Imlay's employer, Bodge Lines, Inc. (Bodge), which was engaged in the trucking business. Frank A. Price was president of Bodge, and Imlay was employed as a mechanic.
Twin City was the liability insurance carrier for Parker Truck, which was engaged in the business of selling new and used trucks. Parker Truck employed Joseph A. Burke as a salesman and William Amos as a truck driver.
Sometime prior to March 24, 1969, Burke contacted Price for the purpose of selling Bodge a new 1969 G.M.C. Model 30T tractor. These negotiations contemplated that, as part of the purchase price, Bodge would trade to Parker Truck a 1966 Mack tractor which it owned, the certificate of title to which was held by a lien holder in Chicago. It was further agreed as a part of the negotiations that Bodge might remove some new tires from the trade-in Mack truck and replace them with used tires. On March 24, 1969, prior to 10:00 A.M., Bodge and Parker Truck, through their representatives, Price and Burke, respectively, came to an oral agreement concerning the purchase price which Bodge was to pay Parker Truck for the new 1969 G.M.C. tractor, and that Parker Truck would pay the lien balance owed on the trade-in vehicle.
At about 10:00 A.M., Burke went to the premises of Bodge, at which time Price, on behalf of Bodge, executed a conditional sales contract for the purchase of the new 1969 tractor; and an invoice for the same was delivered to Bodge. By this time Bodge had the new 1969 tractor in its possession. The exchange of tires on the trade-in vehicle had not yet been accomplished.
At about 1:00 P.M. the same day, Burke and Amos went to the Bodge premises to pick up the trade-in vehicle and transport it to the premises of Parker Truck. Imlay advised them he had not yet completed the exchange of tires. Burke said he would not be able to return that day, and Imlay then volunteered to drive the trade-in vehicle to the premises of Parker Truck after he had completed the exchange of the tires. Burke said that would be all right.
Imlay completed the exchange of tires at the Bodge premises and about 4:30 P.M. was driving the Mack trade-in to the Parker Truck premises. En route he was involved in an accident with defendants Oley Thorpe and Mary Cook. The Mack tractor, damaged in the collision, was later removed to the Parker Truck premises. Parker Truck subsequently had it repaired at its own expense, paid the balance owing to the lien holder, received the certificate of title and resold the repaired Mack tractor. Parker Truck made no claim that the damage to the trade-in vehicle required an adjustment to the contract.
All of the foregoing facts were found by the trial court and are fully supported by the record before us. They are not clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, Title 28, U.S.C.A.
Defendants Oley Thorpe and Mary Cook have filed actions seeking recovery of damages for alleged personal injuries and property damage as the proximate result of the alleged negligent operation of the 1966 Mack tractor by Imlay.
The instant cause was submitted to the trial court upon a joint stipulation, without a hearing, upon the pleadings, the depositions of Imlay, Burke and Price and the respective insurance policies of Home and Twin City. The stipulation further provided:
"* * * the sole issue for determination is whether said plaintiff or said defendant insures one Rex Imley for his liability, if any, arising out of an accident which occurred on March 24, 1968 and out of which said accident claims have been presented by defendants Oley Thorpe and Mary Cook.
"* * * there is a single issue of fact which will be determative [determinative] of this question, to wit: Was the vehicle driven by said Rex Imley, at the time of the accident in question, 'owned' by Bodge Lines, Inc. (insured by The Home Indemnity Company), or by Parker ...