*1 рaid since interest in advance received has been 1931, months, the interest within six 9, fully earned July not per cent. We do would exceed 9, construed, July contracts, 1932. fairly think the interest at provide. They promise accordingly affirmed. cent, per annum. per rate 5% year less than means that for a time paid. proportionately interest is to be less desires, pay he “the If insured loan due.” time before interest inter fairly only earned This means that charged est in such settlement. is to be loan is accelerat maturity When means, agreement ed INS. COLUMBIAN LIFE CO. v. NAT. de the loan” is to be “the amount due on FOULKE. paid under the ducted from the sum be No. 10708. policy. Again, should be held due, legally justly mean what is Appeals, Eighth Circuit. Circuit Court of interest. include unearned Texas, subd. deals statute of art. April 1, policies, against with this matter loans provisions spec “at a authorizing for them interest,” providing ified rate company may “that the deduct from such any existing loan value indebtedness on policy any unpaid balance premium policy year, and for the current may collect interest advance the loan on year.” current end of the policies require These conform to the statute, ments of Texas and the com pany in agreements its loan has not trans gressed them. statute must con be. usury statute, strued with the so that of “specified course the rate interest” can cent, per annum; per not exceed 10 but the taking a lawful rate in advance as the usury, statute authorizes not result in does says only since the “existing policy” on indebtedness is to be de settlement, fairly ducted in a and this apply excludes unearned interest. To appellant construction for which contends prevent would charging advance loan, rate of interest on such a be cause event insured which ma policy might happen tures the day the next thus rаte make reserved to ex cent, per ceed 10 po for that time. The tential usury arising possible from a ac celeration which was asserted to exist in Shropshire Co., v. Commerce Farm Credit (2d) 282, Tex. 30 S.W. (2d) 84 A.L.R. Manning Christian, Tex. (2d) S.W. is not generally recognized, as we stated in Armstrong Co., Alliance Trust su pra. We do not it ought think to be in here, ferred the contract not requiring point fact, construction. In *2 was death of the said Foulke Edward L. bodily the result direct- injuries effected ly causes independently all the In- through accidental means” and un- Company obligated to her surance “is provisions policy the der sum of of said the de- $7,500.00,” “she has and that STONE, dissenting. Judge, Circuit payment plaintiff manded that make such an alleged, her.” It was also “There is de- controversy plaintiff actual between plaintiff obligation fendant to the of the arising to the defendant the afore- out of said claim under and demand of defendant policy, denial there- said and the aforesaid the plaintiff.” prayer the petition the “declare was that the court obligations rights of the defendant and plaintiff policy ac- said under prоvisions 274d cordance of section of the Federal Code.” Judicial Foulke, defendant, demurred Nelle City, Murphy, Mo. of Kansas David A. “1. That petition grounds: on the Harding, (John T. R. C. Tucker John sufficient petition state facts said does not Mo., City, on Murphy, of Kansas action in favor to constitute cause of appellant. brief), for plaintiff against the defendant. City, Mo. Rogers, Kansas Whitson petition justiciable does not state said (John Margolin, E. Wright S. and Abraham controversy. petition said shows 3. That Mo., City, brief), on both Kansas plaintiff not entitled upon its face appellee. declaratory judg- under the relief The District sustained GARDNER, ment law.” Court STONE, Before and, (13 F.Supp. 352), the demurrer WOODROUGH, Judges. Circuit further, plead plaintiff having refused to judgment of dismissal followed. WOODROUGH, Judge. Cirсuit Life Insur- The Columbian National opinion from the appears It corpora- Company, a Massachusetts ance tion, judge gave careful trial court that the first appealed dismissing has from order question whether consideration “case of actual declaratory judgment under petition for its controversy” presented was (28 U.S. 274d of the Code seсtion petition allegations of the within Judicial alleged 400). that it C.A. of the federal the intendment insuring policy Edward L. had issued one in the foot set full judgment out bodily resulting loss from Foulke opinion. The court decided note to his directly independent- injuries effected plaintiff’s settled in favor was ly causes from accidental means all other etc., Wallace, Nashville, R. Co. v. injuries providing that such resulted if 345, 77 L.Ed. 87 A. U.S. said Edward L. Foulke with- the death of light “In the of this and said: L.R. causing days accident proceeding precedent, cannot be said that Company pay would injuries the Insurance company a declaration an insurance principal sum therein Nelle Foulke the stat- an insurance contract to the is not liable on wit, $7,500. alleged ed, further that beneficiary under the contract after the L. to his Edward Foulke came death said during the life of the insured of the death ” policy in full when was force at a time and ‘controversy.’ is not a ‘case’ contract effect, death resulted but from agree with the District Court’s con- We to natural and was due causes and did not clusion, as stated. any injuries directly еffected result expressed court also independently of all other trial causes plain Foulke, the declaration through opinion means. Nelle accidental plaintiff, Mo., effect that the City, beneficiary petition to the of policy, of the tiff’s Kansas notwithstanding death of the insured made defendant and it al- was was policy and notwith- the life of thе leged that she “claims and asserts that the within A. al., Siegel al. v. et 294 Pa. standing and demands of the claims Moore, Co. v. fendant, Wáshington-Detroit Theatre defendant liable to the A.L.R. “is not 229 N.W. beneficiary Mich. on account Borchard, plaintiff and 28 U.S.C.A. 400. See right a declaration § *3 Declaratory seq. act). Judgments, p. et meaning had” of the (within or conclu- On this issue we have come to that ei- But the record does not disclose be to plaintiff’s alleged right sion that the exercise ther of invoked immune the claim the defendant or court judicial discretion in the trial is a makes under the against it such discre- any concerning that de- “right” may petition have which it to presented any ruling thereon tion was or We by clared 274d. the terms of section presеrved for review. The defendant’s think is in accordance our conclusion full, murrer, set in asserts above forth Nashville, etc., Wallace, supra, R. Co. v. to failure state facts constitute “to sufficient v. Ed- Company Insurance Life Aetna action,” justici- a cause the absence “a Haworth, 57 M. P. Cora win Haworth controversy” able and “that -, March 81 L.Ed. decided upon рlaintiff shows its face is not en- any titled relief under the law.” Court sus- The District beneficiary, is contended for the having tained demurrer done as laid and Foulke, Nelle that a so, plaintiff dismissed the case when the adequate suit does where reme not lie other further, plead action is the failed to and that dy equity argu The law or in exists. appellee sole matter review. The also may Company ment is that the Insurance says special in brief her circumstances wait until been then it has sued and can by existed and were “learned” the trial itself, defend it must be deemed court justified which the exercise discre- adequate remedy without resort to this petition. tion But the record to dismiss the declaratory judgment suit. not con presents by aр- basis for ruling no this procedure tended there other pellate upon judicial court dis- matter open Company by to the Insurance which it argued appellee we make cretion presently could obtain relief claims from the sustaining none. The trial court erred alleges and demands which it defend the demurrer. wrongfully making against ant is it. The position aрpellee support pro- finds some Reversed remanded further cases arisen that have under laws ceedings conformity opinion. state with this possibly in Zenie Bros. v. Miskend et .and F.Supp. (D.C.) STONE, al. 779. But find no we Judge (dissenting). Circuit support says federal act. The act agree majority opinion I with the nothing limiting proceedings about under controversy” actual “a case оf exists within to cases where there are no other forms meaning Declaratory Judgment of the par of action in rights which the of the (28 400) Act U.S.C.A. Constitu- § ultimately may ties be determined. It re Also, agree tion. I ap- that the act only controversy,” fers to “cases actual ply petitioner where seeks to have deter- and in such cases the courts of United presently liability upon his mined a contract empowered States are rights declare liability ripened where such and he could legal par relations of interested proceeded be equity. at law or in ty petitioning for such declaration. agree I cannot that the act covers a situa- adequate remedy tion “other at law appellee pre The Nelle Foulke also equity (italics or exists” added), which discretionary sents that “it was with the majority seems to be announced in the opin- lower peti court whether entertain ion. declaratory judgment” tion for and “its dis properly cretion should not be reviewed paragraph majority opin- If the in the this court.” She cites the following cases: does, what I ion means think it then a Miskend, supra; Zenie Bros. v. Automo declaratory judgment may sought, be with- Inc., Equipment, tive v. Trico Cor act, completely, Products in the matter how how poration F.Supp. 292; (D.C.) adequately, New Dis how sufficiently all existing legal coveries v. Wisconsin Alumni R. Founda equitable protect every or remedies would F.Supp. 596; (D.C.) tion Zeigler petitioner right situation in Pickett, Wyо. 25 P.(2d) New which he finds at the time himself he files al., et al. v. Interstate true, et petition. proceed- If this sum be then 152 Tenn. ings Ladner et can replace the act used to under all 26á poses enacting Congress stat- existing remedies under important ute. In this I regard, limit. Most most think circumstances without directly opposed such a respectfully, is attribut- construction is suggest I Congress. Congress to be intent of ing Congress intention —said intent of provide remedy expressed justi- legal was to is neither situa- this act —which pur- existing remedy where no fied of the'known tions would lie1 nor tenable in view Judiciary immunity report privilege, may depend. or of the Senate * * * Seventy-Third party judg- (Rep. seeking Committee No. legal clearly Congress, Session) ment must have an interest states Seсond repeatedly anticipatory equitable danger character of reason loss or remedy. portion uncertainty the new report to his or other *4 jural (italics added) relations, is follows: an as and that there is actu- al bona fide or and substantial Declaratory Judgment. of “Nature dispute, in issue or substantial uncertain- declaratory judgment “The differs in no ty legal requires of which relations set- any respect judgment essential from other parties, tlement between the except is a it not followed decree persons having the com- an interest in damages, injunction, specific perform- for plaint parties proceeding, are to the or ance, immediately or other coercive de- notice, and the court reasonable is conclusively finally cree. declares opinion parties should not of rights parties litigations of in a over be to seek redress in some other left issue, contested a form of relief which procedure, and issues of form of often suffices to settle controversies and jury, fact be submitted to the fully justice. par- administer It enables the decision of subject final the court shall be disputes rights ties in contract, over their over a by appeal.’ to review deed, lease, will, or other procedure especially “The been has use written to’ instrument sue a declara- avoiding necessity, in rights, now so tion of tract, etc., citing without breach the con- ful present, often of having peril to act at ontfs or as defendants those who of interpretation oppose right. to act on own one’s their of has claims been of rights, rights mainly employed his or abandon one’s in because State courts incurring damages. kinds, a So now construction of all of instruments of of fear necessary, in it is the absence of for the determinatiоn mari- status often of declaratory judgment procedure, relations, to tal or for the deter- domestic purport rights property, or to violate violate a statute mination of contested of personal, order to a or obtain determination real and for declaration Compare validity. meaning rights or its or of contested under of City Elgin municiрal ordinance, Co. v. of was Shredded Wheat it where 389, 248, possible necessary injunc- (1918) 120 N.E. where or to 284 Ill. obtain an injunction were denied an tion. municipal of a “In the enforcement the case Newsum v. Interstate Realty carrying (1925) 302, penalty, and were ordinance 152 Tenn. 278 56, purport to violate the statute court stated: advised S.W. “ declaratory judgment rights determin and then their could be ‘A essential- apparent
ly ed, with Erwin Billiard Parlor v. Buck one construction. It' provid- history legislation (1927) 278, 565, from ner Tenn. 156 ing procedure, well as under such for this from where Declaratory was issued and settled the the recitals of the Uniform Judgments circumstances controversy. primal itself, its now it is often neces Act So construction, definitely sary lease, purpose or or a act is the break a contract interpretation status, legal rights, upon re- one’s own stated lations, commonly expressed present disputed, order controversy. written when although instruments, justifiable there- not confined In court a having judg jurisdictions to.’ upon necessary procedure, “The limitations and condition it is not ment rendering judgment bring about social economic are well such such stated (1923) to obtain order ease of Braman Babcock waste and destruction in the v. rights. 150, 151, one’s There 120 A. which a determination Conn. 98 printed act, with the committee held was filed it was that the Connecticut which hearings closely proposed number of annotations resembles the Federal act, Oarmody’s practice act, New York authorizes— “ compiler superior judg- to com court to final undertook ‘the render in which pare de obtainable under the as to the or the relief ments existence nonexistence claratory judgment procedure, power, privilege, right, without or immuni- upon necessity breach, prior ty, with the or of fact which the exist- having power, practice right, to break or nonexistence of old first ence
265 tect.2 been *5 265, 271; Zeigler available was London, New Research Inc., Petition of Bros. v. Supp. 292, 294 (D.C.W.D.N.Y.); C.S.D.N.Y.) Co., (D.C.W.D.Wis.) In some 152 Tenn. discretion worked Discoveries, Inc., v. Trico remedy Miskend, Foundation, F.Supp. 586, Kariher, ; out jurisdictions, inadequate existing Newsum Interstate Products (New 302, 305, ; through the trial Automotive 284 Pa. Pickett, Wyo. 283, York Life F.Supp. v. Wisconsin rеmedy Corporation, the announcement F.Supp. n court this (D.C.D.Mass.) completely 455, 471, 46 S.W. which Equipment, Ins. Co. effect Alumni 56, 57; 131 A. Zenie pro- use (D. F. ; Ind. Bank this tention oft tect the as a matter of Trust Co. v. 536, 564, here filed. relied first and third equitable [H.L.1921] affirmed. [1911] failed to state attempt petition result 25 such failure was upon petitioner. 1 P.(2d) remedies v. British KB. should, Congress under the act must state 2 A.C. to do this. I to show thаt Hannay think the Dyson 391, 393; grounds jurisdiction. in order to make will not Bank for effective, cause of & Co. [1915] v. Therefore, challenged Attorney-General Russian existing legal or It seems adequately Foreign Trade be action, So here should Guaranty demurrer regarded Com. the fact viewed, I think the in- 2 K.B. makes pro- me & interpre- junction by power act on contracts or onе’s own the Federal courts judicial tation in order to enabling obtain a will be obviated the courts comparison enlight- declaratory judgments. termination. The is to render ening. There seems little important practical advantage “An many situations in the conduct of busi- declaratory judgment lies in the fact disputes par- ness serious occur between litigants it enables to narrow the is- ties, where, possibility if there were a sue, speed decision, and settle obtaining declaration controversy before an accumulation of action, in a formal much waste economic hostility engendered differences and peace pro- could avoided and social general conflict, involving wide moted. Pеrsons now often have act numerous collateral issues. Some peril, danger their which could be Carmody’s illustrations Annotations frequently ability avoided sue respect enlightening. are in this declaratory judgment for a as to their “Representative Ralph Gilbert dis- rights or duties. cussing Repre- this bill House declaratory judg- “The fact is that January 25, 1928, sentatives on describ- proved necessary ment has often declaratory judgment procedure ed the employed it has been under other names follows: many years, and that for injunction procedure eases the court, ju- “You have the same the same abused in order is risdiction, procedure, same the same to render what judgment. effect a question. same Under examplе, For in the case of present you step law take Society (1925) Pierce v. of Sisters 268 U. light dark and then turn on the to see 510, 525, S.Ct. L.Ed. S. 45 you stepped into Under hole. if injunc- A.L.R. court issued you law turn of an tion enforcement Ore- light step.’’ on the and then take the gon which was not to come into years later; rendering force until judgment An instance this field of the act declaring void, Haworth, the statute Life Co. Ætna Ins. 57 S. — declaratory judg- court in effect issued a L.Ed. Ct. was, effect, apparently, alleged respondent failure of ment what injunction. Sec, also, bring an abuse of the an action enforcement of the Village policy opened petitioner Euclid v. Ambler loss evi (1926) U.S. 71 L. continued maintenance dence and to protect A.L.R. Much Ed. insurance reserves substantial hostility policy. the extensive use of in-