241 F.2d 363 (5th Cir. 1957), 16056, Harford Mut. Ins. Co. v. Gorbet

Docket Nº:16056.
Citation:241 F.2d 363
Party Name:The HARFORD MUTUAL INSURANCE COMPANY, Appellant, v. Dorothy Lee GORBET, a Feme Sole, and Ronald Robinson, a minor; Thomas W. Norsworthy, Jr. and wife, Mrs. Thomas W. Norsworthy, Jr.; James Ira Deloache and wife, Mrs. James Ira Deloache, Appellees.
Case Date:January 09, 1957
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 363

241 F.2d 363 (5th Cir. 1957)

The HARFORD MUTUAL INSURANCE COMPANY, Appellant,

v.

Dorothy Lee GORBET, a Feme Sole, and Ronald Robinson, a minor; Thomas W. Norsworthy, Jr. and wife, Mrs. Thomas W. Norsworthy, Jr.; James Ira Deloache and wife, Mrs. James Ira Deloache, Appellees.

No. 16056.

United States Court of Appeals, Fifth Circuit.

January 9, 1957

Page 364

John J. McKay, Charles N. Avery, Jr., Austin, Tex., for appellant.

James U. Thurman, Leslie Shults, Shults & Thurman, Dallas, Tex., for appellees.

Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question here is whether an insurer can cancel a policy by accepting its surrender from one neither the named insured nor the agent of the named insured. The District Court's answer obviously was in the negative. And we agree.

The facts are amazingly simple: Kenneth and Dorothy Gorbet were married from April 4, 1950, until a divorce on May 12, 1954. Two years before this insurance controversy arose, Kenneth, by formal Texas Motor Vehicle Assignment of Title, transferred to Dorothy, title to the Studebaker car. Hoskins v. Carpenter, Tex.Civ.App., 201 S.W.2d 606, writ refused NRE. The Studebaker was, and continued to be, her separate property. Belkin v. Ray, 142 Tex. 71, 176 S.W.2d 162; Story v. Marshall, 24 Tex. 305, 306; Forman v. Glasgow, Tex.Civ.App., 219 S.W.2d 845.

In January 1954 Kenneth's business (a community activity, of course), Gorbet Lawn Sprinkling Service, obtained needed funds by a bank loan. Put up as part of the collateral demanded by the bank was Dorothy's Studebaker. The bank required insurance. On January 30, 1954, Kenneth obtained from Harford's authorized agent a Texas Standard Combination Automobile Policy which listed Kenneth L. Gorbet as the 'name of insured.' When Dorothy learned, within a few days, that the policy was in Kenneth's name, she informed Harford's agent that she was the owner and requested that the policy be corrected accordingly. This was done by Harford's agent affixing to the original policy (then in the bank's hands) a Texas Form 64 General Change Endorsement. 1 Kenneth, learning of this within a few days when he saw a confirmation copy of the endorsement which Harford had mailed to Dorothy, was somewhat annoyed, but, acquiescing fully without protest

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either to the bank or to the insurer, impliedly ratified Dorothy's acts. As between Dorothy and Harford, therefore, she became, 2 as of the date of the original issuance of the policy, January 30, 1954, the named insured.

In April, domestic tranquility ceasing or diminishing, a divorce was agreed to by each, and by property settlement contract of April 16, 1954, later approved in the divorce decree of May 12, 1954, Dorothy was to have, amongst other things, the Studebaker car. 3

To free the Studebaker, Kenneth, with the bank's permission, substituted another...

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