Williams v. Travelers Insurance Company

• Decision Date: 20 April 1959
• Docket Number: No. 7836.,7836.
• Citation: Williams v. Travelers Insurance Company, 265 F.2d 531 (4th Cir. 1959)
• Parties: A. P. WILLIAMS and Roxie J. Williams, Appellants, v. TRAVELERS INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

265 F.2d 531 (1959)

A. P. WILLIAMS and Roxie J. Williams, Appellants, v.TRAVELERS INSURANCE COMPANY, Appellee.

No. 7836.

United States Court of Appeals Fourth Circuit.

Argued April 15, 1959.

Decided April 20, 1959.

Walter R. Jones, Jr., Rockingham, N. C., and Z. V. Morgan, Hamlet, N. C., for appellants.

Harry DuMont, Asheville, N. C.(Uzzell & DuMont, Asheville, N. C., on brief), for appellee.

Before SOPER and HAYNSWORTH, Circuit Judges, and BOREMAN, District Judge.

PER CURIAM.

These suits were instituted by the Travelers Insurance Company to determine the rights of the parties under a garage liability policy issued by it to Hood Autos, Inc. Liability under the policy had been asserted by Roxie J. Williams and A. P. Williams, as a result of a collision between an automobile owned by Hood Autos, Inc., and operated by Bennie Joe Dunlap, one of its employees, and an automobile operated by Roxie J. Williams, in which A. P. Williams was a passenger.A suit was instituted by A. P. Williams in the Superior Court of Richmond County, North Carolina, against Hood Autos, Inc., for damages for injuries resulting from the collision, wherein it was determined that at the time of the accident Bennie Joe Dunlap was not acting as the agent of his employer.Subsequently A. P. Williams instituted an action against Bennie Joe Dunlap in the same court to recover damages for injuries resulting from the collision.

The injured parties contend that Bennie Joe Dunlap was an insured within the meaning of the omnibus clause of the insurance policy issued by the Insurance Company and the pending suit was instituted by it to determine the validity of this claim.The disputed question of fact is whether at the time of the collision Dunlap was driving the automobile of Hood Autos, Inc., with its permission.Evidence on this issue was offered by the parties to the pending suit and at the conclusion thereof the Insurance Company moved for a directed verdict in its favor.This motion was overruled and upon the submission of the issue to the jury they answered the question in the affirmative.Thereafter the Insurance Company made a motion for a new trial and also a motion for a judgment n. o. v. The judge granted the latter motion, being of the opinion that there was no substantial evidence to support the jury's verdict, and this appeal followed.

The only evidence to support the affirmative of the issue was given by Bennie Joe Dunlap, the driver of the insured car.He testified that he was employed as a mechanic by Hood Autos, Inc., at Laurinburg, North Carolina, and had been working on the restoration of an old car several days prior to the date of the accident and had practically completed the work at the end of the day of...