Pennsylvania Thresherman & F. Mut. Cas. Co. v. Crapet

• Citation: 199 F.2d 850
• Decision Date: 15 November 1952
• Docket Number: No. 13929.,13929.
• Parties: PENNSYLVANIA THRESHERMAN & FARMERS' MUT. CAS. INS. CO. v. CRAPET.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

199 F.2d 850 (1952)

PENNSYLVANIA THRESHERMAN & FARMERS' MUT. CAS. INS. CO. v. CRAPET.

No. 13929.

United States Court of Appeals Fifth Circuit.

November 15, 1952.

Geo. W. Yancey, Birmingham, Ala., for appellant.

E. David Haigler and Francis H. Hare, Birmingham, Ala., for appellee.

Before BORAH, STRUM and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This action was brought to subject the proceeds of a policy of Automobile Liability Insurance to the satisfaction of a judgment obtained in the State court. The complaint was in two counts purporting to plead two separate theories or causes of action: the first being in equity under the authority of Title 28, Sec. 12, Code of Alabama of 1940;¹ and the second being at law and asserting that the plaintiff was a third party beneficiary under the contract of insurance.

The plaintiff had recovered a judgment for $10,000.00 in the State court against Benjamin Guzzetta, driver of the automobile which struck and killed plaintiff's intestate. In this case the plaintiff claimed and contended that Guzzetta was an insured under the policy of Automobile Liability Insurance² and sought to subject the proceeds of that policy to the satisfaction of the judgment obtained in the State court. The named insured in the policy was one Hollis Beard. The basic questions comprehended within the issue were submitted by the District Judge to the jury in the form of two interrogatories, which with the jury's answers were as follows:

"Interrogatory No. 1:

"Before the accident on September 27, 1947, had Hollis Beard made a `gift\' of the Pontiac convertible to Betty Gene Beard, now Betty Gene Mitchell? — No. Odie D. Jones, Foreman."

"Interrogatory No. 2:

"Was Benjamin Guzzetta driving the Pontiac convertible on September 27, 1947, with the `consent\' of Hollis Beard? Yes. Odie D. Jones, Foreman."

Many of the facts were beyond dispute. Hollis Beard of High Point, North Carolina, had purchased the car on March 7, 1947, and on the next day the insurance policy was issued in his name. Within a week, on the 14th day of March, he drove the car to Birmingham, Alabama, delivered it to his then — but estranged — wife, Betty Gene Beard, and the next day returned to North Carolina taking with him another car which his wife had driven to Birmingham. The certificate of title of the motor vehicle required by the laws of North Carolina was issued to Hollis Beard on March 28, 1947, and was not officially changed to the name of Betty Gene Beard until November 4, 1947, sometime after the fatal accident. Alabama, however, is not a "title" state and a gift transferring title to an automobile may there be made by delivery and passing of custody, control, management and use from the donor to the donee, Feore v. Trammel, 213 Ala. 293, 104 So. 808; De Mouy v. Jepson, 255 Ala. 337, 51 So.2d 506, 508. The Beards were divorced on April 13, 1947. Mrs. Beard retained possession of the automobile. Mr. Beard married another woman on September 20, 1947. The date of the fatal accident was September 27, 1947. On that day Mrs. Beard had loaned the automobile to a friend by the name of Benjamin Guzzetta to use for his personal pleasure; and Guzzetta, while so using said automobile, had struck and killed plaintiff's intestate. The insurance policy had remained in the name of Hollis Beard. Mrs. Beard had continued to use the North Carolina license tag on the car and had not applied for and obtained an Alabama license. Hollis Beard had not given her a written transfer or bill of sale to the car.

Concededly, Mrs. Beard's use of the car was not accompanied by any restriction, express or implied, to prevent her from permitting its use by Guzzetta or any one else. The district court proceeded on the theory, correctly we think, that if Hollis Beard retained the title to and right of control of the automobile, then either under the North Carolina Statute, see Harrison v. Carroll, 4 Cir., 139 F.2d 427, or under the terms of the policy, see Georgia Casualty Co. v. Waldman, 5 Cir., 53 F.2d 24, when he permitted its unrestricted use by Mrs. Beard, and she in turn loaned it to Guzzetta, Guzzetta would be using the car with the implied consent or permission of Hollis Beard. The disputed issue of fact, therefore, was whether Hollis Beard had divested himself of all right of control by making a gift of the insured automobile to Betty Gene Beard on March 14, 1947. On that issue four witnesses, Hollis Beard, Betty Gene Beard, and Mr. and Mrs. H. L. Waldrom, testified positively in the affirmative. The plaintiff introduced no witness, but relied upon circumstances and inconsistencies developed upon the examination and cross-examination of the four witnesses for the defendant, which may be briefly summarized as follows:

1. That though Hollis Beard delivered the automobile to his wife within a week after its purchase, he took the title in his own name and had the insurance policy issued in his name and it so remained.

2. That he accepted the North Carolina certificate of title made out in his name two weeks after he had delivered the automobile to his wife.

3. That the transfer of that certificate of title bears date September 26, 1947, the day before the fatal accident, but was not filed until November 4, 1947. While that written transfer purports to be signed by Hollis Beard before a Notary Public in North Carolina on September 26, 1947, and Betty Gene Beard purports on the same form to have applied for a new certificate of title on the same day, September 26, 1947, before the same Notary Public; it is conceded that on that day Betty Gene Beard was actually in Birmingham, Alabama, and that discrepancy is not explained by either party. The transfer was not filed with the Department of Motor Vehicles of North Carolina until November 4, 1947.

4. That, though the car had been in Alabama for a number of months at the time of the fatal accident, it continued to bear the North Carolina license tag. Under Alabama law a period of thirty days is allowed to continue to display the license tag of the foreign state, Code of Alabama 1940, Title 51, Sec. 707.

Notwithstanding these apparent inconsistencies, we are very strongly impressed with the positive and unequivocal testimony of the four witnesses and with the fact that the automobile remained in the possession and under the control of Mrs. Beard after the divorce and after Mr. Beard's marriage to another woman. Following the fatal accident, Mrs. Beard has retained possession and control of the automobile and still had such continuous possession and control at the time of the trial although in the meanwhile she had remarried to a man named Mitchell.

The case was tried and submitted to the jury in every respect as if it were an action at law. The district judge in his oral charge impressed the jury with its responsibility, and instructed them that,

"any mistake I make in telling you what the law is, is not your mistake, and it can be corrected and will be corrected somewhere, but you alone can say what the facts are and nobody can correct that anywhere. So you see the vital role which a petit jury plays in the settlement of disputes between people. After you say what the facts are in this case that is the end of that, and that is what I am trying to say to you in explaining to you your duties."

However, in its final judgment the court expressed a doubt as to whether or not the plaintiff could proceed at law as a third party beneficiary, treated the verdict of the jury as advisory, concurred therein, and rested its judgment under the authority of Title...