180 F.2d 246 (4th Cir. 1950), 6002, Byrd v. American Guarantee & Liability Ins. Co.

Docket Nº:6002.
Citation:180 F.2d 246
Case Date:February 23, 1950
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 246

180 F.2d 246 (4th Cir. 1950)




No. 6002.

United States Court of Appeals, Fourth Circuit.

February 23, 1950

Argued Jan. 12, 1950.

Under indemnity policy covering liability for damages arising out of ownership, maintenance or use of described automobile, and containing omnibus clause, named insured was insured only while owner of vehicle, and coverage did not extend to insured who without notice to or consent of insurer assigned title of vehicle before accident to another who was driving at time of accident.

Page 247

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 plaintiff's 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 pleading 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...

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