Bowles v. Commercial Casualty Ins. Co.
Decision Date | 06 November 1939 |
Docket Number | No. 4522.,4522. |
Citation | 107 F.2d 169 |
Parties | BOWLES v. COMMERCIAL CASUALTY INS. CO. |
Court | U.S. Court of Appeals — Fourth Circuit |
Frank W. Rogers, of Roanoke, Va. (Woods, Chitwood, Coxe, Rogers & Muse, of Roanoke, Va., on the brief), for appellant.
S. King Funkhouser and Martin P. Burks, III, both of Roanoke, Va. (Ran G. Whittle and Funkhouser & Whittle, all of Roanoke, Va., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and LUMPKIN, District Judge.
This is an appeal from an order in a suit for a declaratory judgment directing that defendant submit to a physical examination. As no final judgment has been entered by the court below, and as we have jurisdiction of appeals only where taken from final judgments, except in cases not here material, we are of opinion that the appeal must be dismissed.
The suit was instituted by the plaintiff, Commercial Casualty Ins. Co., against an insured, to whom it was paying benefits on the basis of total and permanent disability. Its purpose was to have the court declare that plaintiff was entitled to have an examination made of defendant under the terms of his policy and to have the court then declare that insured was not totally and permanently disabled as the result of an accident therein insured against. The court without determining either of the questions as to which declaratory judgment was asked, entered an interlocutory order that plaintiff be permitted to make or have made a physical examination of plaintiff. That such order was entered pursuant to the power vested in the court by Rule 35 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c and not as a declaration of rights under the policy, sufficiently appears from the face of the order, which is as follows:
The appellate jurisdiction of this court extends only to the review of "final decisions" of the District Courts, except in a limited class of cases not here material. 28 U.S.C.A. § 225. As was said by the Supreme Court in Arnold v. U. S., for Use of W. B. Guimarin & Co., 263 U.S. 427, at page 434, 44 S.Ct. 144, 147, 68 L.Ed....
To continue reading
Request your trial-
Clinton Foods v. United States
...697; and cases therein cited.' See also Western Contracting Corp. v. National Surety Corp., 4 Cir., 163 F.2d 456; Bowles v. Commercial Casualty Ins. Co., 4 Cir., 107 F.2d 169; Hyman v. McLendon, 4 Cir., 102 F.2d 189, 190; Fields v. Mut. Benefit Life Ins. Co., 4 Cir., 93 F.2d 559, 561; Lockh......
-
Sidis v. FR Pub. Corporation
...in Atwater v. North American Coal Corp., 2 Cir., 111 F.2d 125, there is as yet no final order in the case. See also Bowles v. Commercial Cas. Ins. Co., 4 Cir., 107 F.2d 169; Karl Kiefer Machi Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469; 5 Mo.L.Rev. 110; 26 Va.L.Rev. 22......
-
Jiffy Lubricator Co. v. Stewart-Warner Corporation
...697; and cases therein cited." See also Western Contracting Corp. v. National Surety Corp., 4 Cir., 163 F.2d 456; Bowles v. Commercial Casualty Ins. Co., 4 Cir., 107 F.2d 169; Hyman v. McLendon, 4 Cir., 102 F.2d 189, 190; Fields v. Mut. Benefit Life Ins. Co., 4 Cir., 93 F.2d 559, 561; Lockh......
-
Western Contracting Corp. v. National Surety Corp.
...Corporation v. W. & S. Job, 252 U.S. 521, 522, 40 S.Ct. 357, 64 L.Ed. 697; and cases therein cited." See also Bowles v. Commercial Casualty Ins. Co., 4 Cir., 107 F.2d 169; Hyman v. McLendon, 4 Cir., 102 F.2d 189, 190; Fields v. Mut. Benefit Life Ins. Co., 4 Cir., 93 F. 2d 559, 561; Lockhart......