411 F2d 621 Dairyland Insurance Company v. McGraw Dairyland Insurance Company

411 F.2d 621

DAIRYLAND INSURANCE COMPANY, a corporation, Appellant,
Johnnie Keith McGRAW, Frances Joan Robinson, Administratrix of the Estate of James Edwin King, deceased, and Constance Jean King, an infant, Appellees.
DAIRYLAND INSURANCE COMPANY, a corporation, Appellant,
Johnnie Keith McGRAW, Carolyn Scharf, Administratrix of the Estate of Robert Edward Reid, deceased, and Sherry Reid, an infant, Appellees.

No. 13138.

United States Court of Appeals Fourth Circuit.

Argued May 9, 1969.

Decided June 2, 1969.

Charles E. Hurt, Charleston, W. Va., on the brief, for appellant.

Arden J. Curry and Samuel D. Lopinsky, Charleston, W. Va., for appellees.

Before HAYNSWORTH, Chief Judge and BOREMAN and BRYAN, Circuit Judges.


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Coverage of the plaintiff's automobile liability policy turns upon the question of whether or not Orville McGraw had sold the Ford automobile to his younger brother Johnnie. After a denial of a motion by the plaintiff for summary judgment, the District Court found on the evidence that there had been no sale.


While both Orville and Johnnie testified that the Ford had been the subject of an informal sale, their neglect of the formalities — failure to procure an endorsement on the title certificate and Orville's failure to remove his license plates, both as required by the laws of West Virginia in the event of a sale — and the absence of a bill of sale or other objective indicia, in the light of all of the surrounding circumstances, give support in the record for the finding that no sale had taken place. With such support, the finding cannot be said to be clearly erroneous within the meaning of Rule 52 Fed. R.Civ.P.