Byrd v. American Guarantee and Liability Ins. Co., 6002.

Citation180 F.2d 246
Decision Date23 February 1950
Docket NumberNo. 6002.,6002.
PartiesBYRD v. AMERICAN GUARANTEE AND LIABILITY INS. CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Louis B. Fine, Norfolk, Va., for appellant.

Tazewell Taylor, Jr., Norfolk, Va. (I. W. Jacobs, Norfolk, Va., on brief) for appellee.

Before SOPER and DOBIE, Circuit Judges, and WARLICK, District Judge.

WARLICK, District Judge.

Plaintiff, appellant, brings this action to have her rights determined under the terms of an insurance policy issued by the defendant to one Hubert C. Williams and covering a 1941 Ford DeLuxe Coupe, Serial No. 1, Motor No. 18-6256250.

Elbert Lawson, the intestate of plaintiff, lost his life while riding on a truck belonging to the Norfolk Dredging Company when a collision came about between the truck on which he was riding and the Ford DeLuxe Coupe mentioned above and then driven by Horace P. Heath as its owner and who was then traveling alone in the early hours of December 6, 1946, Williams, the insured, in the policy of insurance was not present at the time of the accident and knew nothing about it for some days after it took place. Subsequent to the death of Elbert Lawson plaintiff qualified on his estate and on January 3, 1947 instituted her action in the Court of Law and Chancery of the City of Norfolk, Virginia, against Horace Pugh Heath, Hubert C. Williams, Roy M. Denson and the Norfolk Dredging Company, a corporation, to recover for his death, and in due time, namely, on July 2, 1947, was awarded a verdict against the defendants, Horace P. Heath and Hubert C. Williams in the sum of $15,000, the other named defendants being exonerated by the jury in the trial of the cause. Neither Horace P. Heath nor Hubert C. Williams filed answer or made any contest to the said action on the part of the plaintiff herein, the judgment being taken in their absence and against them by default. The allegations of the complaint were to the effect that the automobile in collision with the truck on which the plaintiffs' intestate was riding was owned by the defendant Williams, and driven by Heath with the consent of Williams. The execution issued being returned unsatisfied.

On February 4, 1949, the present action was begun by notice given the defendant herein and motion filed thereunder in the Court of Law and Chancery in which the original action was heard and determined, — the motion being that the plaintiff, through her attorney, would move said court on February 21, 1949, or as soon thereafter as such could be heard, for judgment against the defendant for the sum of $10,000 with interest, costs, etc. Subsequently on account of the diversity of citizenship and on motion of the defendant the cause of action was removed to the United States District Court for the Eastern District of Virginia at Norfolk and on pleadings being joined came on for hearing in said court.

At the said hearing in the court below and for the purpose of the judgment entered in the said court, certain facts were found by the court with respect to the parties in issue. From these facts found it appears that one Aubery Clifton Heath purchased the 1941 Ford Deluxe Coupe from George Brately living in Lincoln Park in the City of Norfolk, and that the said Ford was registered in the State of Virginia on September 30, 1944 for convenience in the name of Hubert C. Williams, a brother-in-law of the said Aubery C. Heath, and that ownership continued as such in the name of Hubert C. Williams until November 9, 1946 when said automobile was disposed of by sale. On January 22, 1946, the defendant issued its policy of liability insurance No. SP-36017102 for a period of 12 months from said date, to the said Hubert C. Williams, R. F. D. No. 3, Box 78, Norfolk, Virginia covering the above described automobile and insuring him along with the other coverages not herein pertinent against bodily injury to the extent of $5,000.00 for each person injured and $10,000.00 for each accident, all as set out in item 3 coverage "A" of said policy, caused by accident and arising out of the Ownership, maintainance and use of the automobile, describing the car herein and being in terms a standard form of insurance policy in the Commonwealth of Virginia. This policy of insurance was in full force and effect on December 6, 1946.

Aubery C. Heath was drowned in North Carolina on October 15, 1946, and his widow, a sister of the said Hubert C. Williams, qualified as his personal representative. On November 9, 1946 the automobile involved in the collision, and as set out in the policy of insurance, was sold by the said Hubert C. Williams to Horace P. Heath for the sum of $900.00, all at the instance of Mrs. Aubery C. Heath, widow and personal representative, so as to enable her to settle the estate and was delivered to the said ...

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10 cases
  • Eureka-Security Fire & Marine Ins. Co. v. Maxwell
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 9, 1960
    ...1959, 200 Va. 526, 106 S.E. 2d 588; Staunton Industrial Loan Corp. v. Wilson, 4 Cir., 1951, 190 F.2d 706; Byrd v. American Guarantee & Liability Ins. Co., 4 Cir., 1950, 180 F.2d 246. It may be noted that in Nationwide Ins. Co. v. Storm, supra, the court approved the holding in the case of G......
  • Rogers v. Lumbermans Mut. Cas. Co.
    • United States
    • Alabama Supreme Court
    • November 3, 1960
    ...effect that it shall not be bound by such assignment until its consent is endorsed on such policy. Byrd v. American Guarantee & Liability Ins. Co., 4 Cir., 180 F.2d 246; 122 A.L.R. 144; 20 Amer.Juris., § 825, p. 59 and § 829, p. 62; 44 C.J.S. Insurance § 188, p. 886 and § 196, p. And lastly......
  • Underwood v. National Grange Mut. Liability Co., 390
    • United States
    • North Carolina Supreme Court
    • December 12, 1962
    ...not by virtue of the permission of the named insured seller. (citing many authorities). 'As is said in Byrd v. American Guarantee & Liability Ins. Co., supra, [4 Cir.] 180 F.2d , 249, 'There is no insurance separate and distinct from the ownership of the car.' This is so because an owner's ......
  • North Texas Producers Ass'n v. Employers Mutual Cas. Co.
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    • May 28, 1962
    ...Mutual. Employers Mutual has cited a number of cases in its brief on the point of "change of ownership". Byrd v. American Guarantee and Liability Insurance Company, 4 Cir., 180 F.2d 246; Northwestern National Casualty Company v. Bettinger, D.C., 111 F.Supp. 511, aff'd 8 Cir., 213 F.2d 200, ......
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