Westcott v. United States Fidelity & Guaranty Co.

• Citation: 158 F.2d 20
• Decision Date: 11 November 1946
• Docket Number: No. 5523.,5523.
• Parties: WESTCOTT et al. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

158 F.2d 20 (1946)

WESTCOTT et al. v. UNITED STATES FIDELITY & GUARANTY CO.

No. 5523.

Circuit Court of Appeals, Fourth Circuit.

November 11, 1946.

John H. Hall, of Elizabeth City, N. C. (R. Clarence Dozier, of Elizabeth City, N.C., and Chester R. Morris, of Currituck, N. C., on the brief), for appellants.

Leigh D. Williams and Lawson Worrell, Jr., both of Norfolk, Va. (J. Kenyon Wilson, of Elizabeth City, N. C., on the brief), for appellee.

Before PARKER and DOBIE, Circuit Judges, and HARRY E. WATKINS, District Judge.

DOBIE, Circuit Judge.

The United States Fidelity & Guaranty Company (hereinafter called Fidelity), a Maryland corporation, brought a civil action in the United States District Court for the Eastern District of North Carolina, seeking a declaratory judgment to the effect that it was not liable on a public liability policy in the sum of $5,000, issued to the defendant, Westcott, in connection with the death of Annie Montague, who was killed in a collision when the insured automobile was being driven by the defendant Mann, with the permission of Westcott. The defendants in the civil action, all personally served, were the insured, George Westcott, C. M. Montague, Administrator of the Estate of Annie Montague, deceased, and George Mann, a minor. Judgment was entered by the District Court below in favor of the plaintiff and all the defendants have appealed.

Two questions are presented on this appeal. One, procedural, is concerned with the alleged error of the court below in refusing to appoint a guardian ad litem for the infant defendant, Mann, and the court's refusal to allow: (a) The filing of an answer by such guardian ad litem and (b) the granting of a jury trial. The second question, concerned with the merits, is the alleged error of the trial court in holding that, by virtue of certain exceptions in the policy (issued by Fidelity to Westcott), the death of Annie Montague was without the coverage of the policy.

We consider first the procedural problem. Mann was personally served with process. M. B. Simpson, admittedly an upright and able lawyer, was employed to represent the defendants, Westcott and Mann. An answer was filed on behalf of Westcott and Mann, and it was expressly agreed by counsel on both sides that jury trial be waived. Prior to the day of trial no suggestion was made that a guardian ad litem be appointed. The day before the trial, Mann employed another able and upright lawyer, John Hall, to represent him jointly with Simpson, if no conflict of interest arose between Westcott and Mann, and solely if such conflict did arise.

When the case was called for trial, Hall moved that a guardian ad litem be appointed for Mann and that such guardian be permitted to file an answer demanding a jury trial. These motions were denied by the court below, which, however, permitted an amendment to the original answer and entered an order directing Hall to advise Mann and to protect and defend Mann's interests.

Rule 17(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, reads:

"Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person."

We cannot agree with the contention of appellants that the word "or" in that last sentence really means "and", thus making the appointment of a guardian ad litem mandatory. In Till v. Hartford Accident & Indemnity Co., 10 Cir., 124 F.2d 405, 408, 409, it is said:

"Therefore, while not technically appointed, * * * the next friends did everything for the minors they could have done had they been formally appointed. We conclude that the requirements of Rule 17(c) were substanially complied with and that the failure to appoint guardians ad litem did not render the judgment void."

It seems obvious that the only reason for this motion for the appointment of the guardian ad litem was to secure a jury trial, though counsel for all the defendants had expressly agreed to a trial without a jury and the court, on the strength of this, had discharged the jury. There is no claim that the trial was not fair and impartial. We cannot hold, in the light of all these facts, that the failure to grant this last-minute motion for a guardian ad litem was reversible error.

This brings us to the second question, the correctness of the trial court's holding that the accident was not within the policy's coverage. The policy reads:

"Exclusions

"This policy does not apply:

"(d) under coverages A and C, to bodily injury to or death of any employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of the automobile:".

The court below made this finding of law:

"4. That Annie Montague was, at the time of her injury, an employee of George T. Wescott and engaged in the employment of George T. Wescott within the meaning of Exclusion (d) contained in the policy of insurance issued by the plaintiff to George T. Wescott, and that for this reason the plaintiff is entitled to the relief prayed for in its complaint."

In support of this, the court below made these findings of fact:

"5. The defendant, George L. Mann, was the agent, servant and employee of George T. Wescott, and as such had been granted express authority by George T. Wescott to employ persons to work at the Casino;

"6. Annie Montague had been employed from time to time prior to September 5th, 1945, by George T. Wescott to work at the Nags Head Casino, and on the 5th day of September, 1945, George L. Mann, on behalf of George T. Wescott, and within the...