113 F.Supp. 126 (W.D.Va. 1953), Civ. 380, Maryland Cas. Co. v. Powers

Docket Nº:Civ. 380
Citation:113 F.Supp. 126
Party Name:Maryland Cas. Co. v. Powers
Case Date:April 23, 1953
Court:United States District Courts, 4th Circuit, Western District of Virginia
 
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Page 126

113 F.Supp. 126 (W.D.Va. 1953)

MARYLAND CAS. CO.

v.

POWERS et al.

Civ. No. 380.

United States District Court, W.D. Virginia, Abingdon Division.

April 23, 1953

Page 127

William A. Stuart and G. R. C. Stuart, Abingdon, Va., for plaintiff.

G. Mark French, Clintwood, Va., and Jones, Woodward & Miles, Bristol, Va., for defendants.

BARKSDALE, District Judge.

This case having been tried by the court without a jury on April 10, 1953, the court doth find the facts specially and states separately its conclusions of law thereon, as follows:

Findings of Fact.

Plaintiff, Maryland Casualty Company, issued its public liability insurance policy, effective August 26, 1951, and for one year thereafter, covering a 1950 Chevrolet Sedan, to defendant, Scottie Powers. The policy contains the usual omnibus clause, and also the following specific provisions:

'Item 7. (a) Except with respect to bailment lease, conditional sale, mortgage or other encumbrance, the named insured is the sole owner of the automobile: * * *' (Italics mine),

and Condition No. 24:

'Declarations By Acceptance of this Policy. The named insured agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.'

On November 18, 1951, said Chevrolet automobile, while being operated along a public highway in Hawkins County, Tennessee, by Avery Powers, son of defendant Scottie Powers, was involved in a collision with a vehicle owned and operated by defendant, the Mason & Dixon Lines, Inc., and a third vehicle operated by defendant, Donald Dalton, which resulted in the death of Avery Powers and personal injury to others. Actions at law have been instituted in the courts of the State of Tennessee by certain other defendants against defendant Scottie Powers, in his own right and as Administrator of his son, Avery Powers, and defendant, the Mason & Dixon Lines, Inc., and are now pending.

Plaintiff, Maryland Casualty Company, contends that claims asserted against defendant, Scottie Powers, individually and as Administrator of the Estate of his son, Avery Powers, arising out of the collision, are not covered by its policy of insurance, on the ground that at the time of the accident the defendant Scottie Powers was not the 'sole owner' of the said Chevrolet automobile and the said Avery Powers was not operating it by the permission of Scottie Powers, the named insured, because at that time he, Avery Powers, was the owner of the automobile. Defendants

Page 128

contend that coverage did exist. Pending the determination of this action, the plaintiffs in the pending actions in the Tennessee State courts have been enjoined from proceeding further in these actions and plaintiff prays for a judgment declaring that there was no coverage under its policy at the time of the accident.

Scottie Powers purchased the 1950 Chevrolet automobile described in plaintiff's insurance policy in September 1950, and a certificate of title to it was issued in his name. In late November or early December, 1950, Avery Powers, who was attending Hiwassie College in Tennessee, spent a week end at the home of his father near Coeburn, Virginia. Previously, his father had given Avery an old 1935 Ford automobile, which had gotten in such bad condition that it could not pass the inspection required by Virginia law. Consequently, Scottie Powers had directed Avery to junk the Ford and he would give him a new car. During this week end visit, Scottie Powers said to this son Avery, 'I am going to give you this car (meaning the 1950 Chevrolet here in question) and you take care of it.' Avery then took the 1950 Chevrolet back to college with him. At the same time, in order not to show favoritism, Scottie Powers gave his only other child, an older son, $1,300 in order to even up to him for his gift of the car to Avery. Scottie Powers did not transfer the certificate of title to Avery for the reason that he did not think Avery could dispose of the car if it were titled in his name, because he was not yet twenty-one years of age. Scottie Powers, for his own use, promptly bought a 1951 Chevrolet, and neither he nor any member of his family ever again used the 1950 Chevrolet here in question, and from the time said Chevrolet was delivered to him, Avery Powers used it exclusively. The only time thereafter Scottie Powers ever drove the 1950 Chevrolet was to drive it to the garage to have its brakes relined for Avery. While this work was being done on the 1950 Chevrolet, Avery drove the 1951 Chevrolet of his father. In August 1951, Avery Powers was married, but continued to attend college. Although Avery earned small sums of money in his spare time during all the period here pertinent Scottie Powers supported his son Avery, both before and after his marriage, which support included the necessary expense of operating his automobile. Scottie Powers bought and paid for the 1951 license plates for the automobile. Scottie Powers never transferred the certificate of title to said Chevrolet to his son Avery.

During the taking of the testimony, plaintiff, Maryland Casualty Company, introduced the signed statement of Scottie Powers, setting out the details of his giving said automobile to his son Avery, dated June 26, 1952. This statement had been given to, and was introduced in evidence by, Ben C. Davis, Esquire, Attorney at Law, of Kingsport, Tennessee. Defendants moved to strike out said statement upon the ground that it was a privileged communication between attorney and client. However, it appears by his letter to Scottie Powers of June 4, 1952, that Mr. Davis advised Scottie Powers that he represented plaintiff, Maryland Casualty Company, and the evidence further disclosed that, at the time of the giving of the statement, Scottie Powers was accompanied by his personal counsel, Mr. Kennedy.

Conclusions of Law.

Upon the facts set out above, my conclusions of law are as follows: First, as to...

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