The Western Fire Insurance Company, and v. National Union Fire Insurance Company, And

Before CHAMBERS and HUFSTEDLER, Circuit Judges, and FERGUSON, District Judge.

During the night of May 4, 1967, Leonard Monti, Jr., shot his mistress. It happened in their restaurant bedroom. Successively he had two theories. First, he said it must have happened while he was asleep. Later, he remembered that he shot her, believing mistakenly in the dark that he was shooting at a burglar. As a result, the girl is a helpless quadriplegic. Now, at the instance of two insurance companies we must sift through the ashes' of the tragedy.

Monti, Jr., is a member of the Monti family which has operated La Casa Vieja, a noted Mexican restaurant at Tempe, Arizona, for many years. The restaurant’s corporate name was Monti’s La Casa Vieja Restaurant, Inc. Leonard Monti, Sr., obviously was the dominant figure in the operation. It is appropriate to call Monti, Jr., the manager. He “lived-in” at the restaurant and it seems to have been his duty to protect the place against burglars. (He had other duties.)

National Union had issued a policy of public liability insurance covering the company and its officers while acting as such officers. This was a large policy. Western had written a…