UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant,
v.
PORTAGE BITUMINOUS COMPANY et al., Appellee.
No. 11209.
United States Court of Appeals Sixth Circuit.
February 5, 1951.
Appeal from the United States District Court for the Northern District of Ohio; Paul Jones, Judge.
Dwight Parsons, Akron, Ohio (Buckingham, Doolittle & Burroughs, Akron, Ohio, of counsel), for appellant.
Frank P. Kaufmann, Akron, Ohio and C. M. Horn, Cleveland, Ohio (Englebeck, Cotton & Kaufmann, Akron, Ohio, Squire, Sanders & Dempsey, Cleveland, Ohio, Wise, Roetzel, Maxon, Kelly & Andress and Slabaugh, Guinther, Jeter & Pflueger, all of Akron, Ohio, McKeehan, Merrick, Arter & Stewart, Cleveland, Ohio, and Hartz & Hartz, Akron, Ohio, of counsel), for appellee.
Before SIMONS, MARTIN, and MILLER, Circuit Judges.
PER CURIAM.
In this cause, brought in the United States District Court for the Northern District of Ohio, the appellant insurance company sought a declaratory judgment against The Farm Bureau Mutual Automobile Insurance Company and the Home Indemnity Company of New York to determine their duty to defend its assured, Portage Bituminous Company, in an action brought against the assured by a railway company in the Common Pleas Court of Summit County, Ohio;
And it appearing that the motion of appellant for summary judgment was denied by the United States District Court for the reason that a declaration of the duty of the two other insurance companies to defend the state court action would involve decision upon one of the principal factual issues in the state court action;
Upon consideration of the record and the oral arguments and briefs of the attorneys in this cause, we find that there was no abuse of discretionary power by the United States District Court in its denial of the motion for summary judgment;
Accordingly, the judgment of dismissal entered May 19, 1950, is affirmed.
