140 S.E.2d 817 (Va. 1965), Bryant v. State Farm Mut. Auto. Ins. Co.

Citation:140 S.E.2d 817, 205 Va. 897
Opinion Judge:[10] Buchanan
Party Name:Bernard H. BRYANT, Jr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
Attorney:[7] Paul Whitehead, for the plaintiff in error.
Case Date:March 08, 1965
Court:Supreme Court of Virginia
 
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Page 817

140 S.E.2d 817 (Va. 1965)

205 Va. 897

Bernard H. BRYANT, Jr.

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

Supreme Court of Virginia.

March 8, 1965.

Rehearing Denied April 26, 1965.

Paul Whitehead, Lynchburg, for plaintiff in error.

Henry M. Sackett, Jr., Lynchburg, (Williams, Robertson & Sackett, Lynchburg, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

BUCHANAN, Justice.

The question for decision in this case is whether the appellant, [205 Va. 898] Bernard H. Bryant, Jr., an insured under two separate bodily injury liability insurance policies issued by the appellee, State Farm Mutual Automobile Insurance Company, may recover on both policies pursuant to the uninsured motorist statute, § 38.1-381 of the Code, 1964 Cum.Supp.

On April 20, 1959, Bryant, Jr., was driving on a highway in Amherst county a 1958 Ford truck owned by his father, Bryant, Sr., when he was struck and injured by an

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uninsured motor vehicle being driven by Whithorn. He brought suit in Amherst county against the driver and owner of the vehicle and on February 6, 1961, recovered a judgment against them for $85,000. At the time of the accident Bryant, Jr., was an insured under the terms of a bodily injury liability insurance policy issued by State Farm to his father, Bryant, Sr., which covered Bryant, Sr., 'and any other person while occupying the insured motor vehicle;' and he, Bryant, Jr., was also the named insured in a bodily injury liability policy issued to him by State Farm, and in his suit against Whithorn and others he served a copy of process on State Farm. Each policy had a limit of $10,000 for each person injured.

State Farm acknowledged liability on its policy issued to Bryant, Sr., and paid to Bryant, Jr., $10,059 on his $85,000 judgment in settlement of all claims of Bryant, Jr., under the Bryant, Sr., policy.

The present action was brought by Bryant, Jr., to recover on the policy issued to him by State Farm, to which the latter filed a plea asserting that there was no liability upon it under its policy issued to Bryant, Jr., because that policy provided in Part 4, Section Six, as follows:

'* * * With respect to bodily injury to an insured while occupying an automobile not owned by the named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of all such other insurance. * * *'

The case was submitted to the court on a stipulation of facts, in substance as stated above, including the fact that when the plaintiff, Bryant Jr., was injured he was occupying and driving the 1958 Ford truck which was not owned by him. On the pleadings and stipulation of facts the court below sustained State Farm's plea and dismissed plaintiff's action, and plaintiff appeals. The controlling...

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