(dissenting).
Not being able to concur in the views expressed in the majority opinion, I shall briefly state the grounds of my divergence therefrom.
There are two questions presented; first, is there_ a justiciable controversy presented, and second, is there any substantial evidence to sustain appellant’s contention relative thereto? Both of these questions are answered in the negative by the majority opinion. As set out in that opinion, appellant, which was plaintiff below, alleges that the cause of action set out in Tindall’s petition in the suit pending in the state court “is predicated upon the allegation that the said Tindall contracted and suffered an occupational disease and that said alleged casualty is specifically excluded from the terms and coverage of said policy of insurance * * nor is the plaintiff herein obliged by said policy to defend said action,” and it is alleged that the Supply Company “claims that said casualty is an accident within the meaning of the Missouri Workmen’s Compensation Law and claims that the same is not an occupational disease, as alleged by Tindall, and that it is covered by the terms of the policy aforesaid, and is demanding that the plaintiff defend said action and that the plaintiff assume and pay any judgment which may be rendered against said assured in said suit.” This, in my view, shows a controversy within the purview of the Declaratory Judgment Act. Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Columbian Nat. Life Ins. Co. v. Foulke, 8 Cir., 89 F.2d 261; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560; Ætna Casualty & Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665. The existence of another adequate remedy at law or in equity does not preclude the right of relief by declaratory judgment. Rule 57, Rules of Civil Procedure. In fact, it was the manifest intention of Congress that this should be a preferred' remedy. It contemplates promptness of decision, the court may order a speedy hearing and may advance it upon the calendar. That there may be jury questions involved is not a bar to the maintenance of this form of action, because the court may order such issues tried to a jury. Section 400(3), Title 28 U.S.C.A., reads as follows :
“When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not.”
In the instant case neither party has requested a trial by jury, so that the question of the right of jury trial is purely academic. As said by the Supreme Court in Ætna Life Ins. Co. v. Haworth, supra: “That the dispute turns upon questions of fact does not withdraw it, as” the respondent seems to contend, from judicial cognizance. The legal consequences flow from the facts and it is the province of the courts to ascertain and find the facts in order to determine the legal consequences. That is everyday practice.”
*910I think it has never been the rule that relief could not be had under the Declaratory Judgment Act because there were jury questions presented by the parties to the controversy.
In the case of Ætna Casualty & Surety Co. v. Yeatts, supra [99 F.2d 669], there was presented a state of facts very similar to those in the instant case. In that case a surety agreed to indemnify a physician against loss not exceeding $5,000 resulting from malpractice, except where such damage resulted from performance of a criminal act.' The physician performed an operation, following which the patient died, and her administrator brought an action in the state court for damages for death by wrongful act. The Surety Company then brought an action against the physician and the administrator of the deceased patient in Federal Court to determine the liability to defend under the indemnity contract. ' In holding that there was an actual controversy, the court, among other things, said:
“The immediate question which the surety must decide is whether it is obliged to defend the suit against the insured in the state court. Obviously its decision cannot await the determination of that -suit, nor need the determination of its duty.in this respect interfere with the trial of the state suit. An actual controversy as to its contractual'duty has arisen between it and the holder of its policy, and hence such a situation exists as is contemplated by the terms of the statute. Moreover, a question of coverage is involved, for the duty to defend and the duty to indemnify are both absolved by criminal conduct on the part of the insured, and this question may not be conclusively decided in the state suit to which the company is not a party, even though it undertakes the defense. See Carpenter v. Edmonson, 5 Cir., 92 F.2d 895. In similar situations it has been held in a number of recent cases that the insurer is entitled to be advised by the court whether or not it is obligated to defend and indemnify the insured against claims upon which suits are threatened or have already been brought.”
The instant case and the case pending in the state court are in personam and “both may proceed until one of them is so decided as that it completely disposes of the issues for decision in the other.” Carpenter v. Edmonson, supra [92 F.2d 897]. Until such a state of facts is shown to exist, the court below had jurisdiction and it was its duty to proceed to determine the rights of the parties. Ætna Life Ins. Co. v. Martin, 8 Cir., 108 F.2d 824.
Here, as in the Yeatts case, the surety must decide whether it is obligated to defend the state action brought against its insured. The appellant, by its petition, asks the court to decide the question of its obligation to defend and to pay any judgment that may be recovered in the state court action. The issues at the time of the trial of this action in the lower court had not been decided nor disposed of. There was, therefore, an actual controversy, of which the lower court had jurisdiction. It was invested with full power and authority to determine all issues of fact and law, and it should have gone to an adjudication on the merits. The fact of the pendency of another action in the state court was not sufficient to warrant a dismissal of this action. A decree of conclusive character is possible in the lower court. If plaintiff fails to prove its case, the action must be dismissed upon the merits, but if it does, plaintiff is entitled to a decision on the merits against the defendants.
But it is said that not- a scintilla of evidence was offered in support of plaintiff’s contention and hence the court could not find whether the casualty in controversy was an occupational disease resulting from the negligence of the Supply Company and not covered by.the policy, or an accident and covered by the policy. I do not believe this statement is warranted by the condition of the record. It should first be observed that it is apparent from the record that the lower court took the. position that it did not have jurisdiction and in effect told plaintiff that it would not hear its testimony going to the merits of the controversy.
However, on the dispute, as stated in the majority opinion, as to whether plaintiff under the policy was obligated to defend and to pay any judgment which might be rendered against its assured in the Tindall suit in the state court, there was this evidence: Plaintiff introduced the.petitions of plaintiff in the state court actions against its insured showing allegations pertinent to an action for occupational disease. Defendant introduced no evidence whatsoever, but moved for a dismissal. The plaintiff by this evidence, aided by the admissions in the pleadings, as to the’issuance of the policy, its limited coverage, and the elements of the controversy, had made out a prima facie case which shifted the burden of the evi*911dence to the defendant. Instead of introducing such evidence, it moved for a dismissal.
I am of the view that the judgment appealed frotíi should be reversed, with direction to the lower court to determine the merits of the controversy between the parties.