Blackwell v. United States, 20121.
| Decision Date | 30 July 1963 |
| Docket Number | No. 20121.,20121. |
| Parties | Rebecca B. BLACKWELL and William G. Blackwell, Appellants, v. UNITED STATES of America and Aetna Casualty and Surety Company, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert S. Cooper, Jr., Alva Brumfield, Sylvia Roberts of Brumfield, Turner & Cooper, Baton Rouge, La., for appellants.
Morton Hollander, Terence N. Doyle, Attys., Dept. of Justice, John W. Douglas, Acting Asst. Atty. Gen., Louis C. LaCour, U. S. Atty., Washington, D. C., for the United States.
F. W. Middleton, Jr., and John I. Moore, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for appellee, Aetna Casualty & Surety Co.
Before TUTTLE, Chief Judge, JONES, Circuit Judge, and De VANE, District Judge.
Joel Rousselle, Jr. had been a member of the Louisiana National Guard for a number of years and was a Staff Sergeant at the time of the occurrence from which this litigation arose. Sergeant Rousselle was the driver of a two-and-a-half-ton truck in a convoy of the National Guard en route to Camp Polk, Louisiana, for an annual training period of two weeks. The truck was owned by the United States and was operated with gasoline purchased with funds of the United States. Sergeant Rousselle was being paid with funds supplied by the United States. Sergeant Rousselle was not, nor was his National Guard unit, then in active federal service. Engine trouble caused Sergeant Rousselle to drop out of the convoy. After getting his truck going, Sergeant Rousselle attempted, pursuant to orders of his superiors, to find his place in the convoy. About two o'clock on the morning of July 16, 1961, the truck was stopped without lights or flares on a public highway. Norman Blackwell, nineteen years of age, riding his motorcycle upon the highway, collided with the truck and was fatally injured. Following his death his parents brought an action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2671, seeking damages for wrongful death and asserting negligence. The motion by the United States for summary judgment was granted.
By an amendment to their complaint, the Blackwells joined Aetna Casualty and Surety Company as a defendant. The amended and supplemental complaint alleged that Aetna had issued a policy of public liability insurance to Sergeant Rousselle covering a Chevrolet car owned by him, and the insurance coverage of the policy extended to the operation of the truck which was involved in the fatal accident. Aetna moved for a summary judgment and attached to its motion a copy of the policy it had issued. The policy provided coverage of the named insured with respect to a non-owned automobile. A non-owned automobile is defined in the policy as one not owned by or furnished for the regular use of the named insured or any relative. Among the policy exclusions was the provision that the policy did not apply to a non-owned automobile while used (1) in the automobile business or (2) in...
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