Malone and Hogan Hospital Foundation, Appellant, v. Boston Insurance Company, Appellee, 378 F.2d 362 (5th Cir. 1967)

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U.S. Court of Appeals for the Fifth Circuit - 378 F.2d 362 (5th Cir. 1967) June 2, 1967

George W. Leonard, Jr., Sweetwater, Tex., R. H. Weaver, Big Spring, Tex., for appellant, Weaver & Ferguson, Big Spring, Tex., Mays, Leonard, Moore & Dickson, Sweetwater, Tex., of counsel.

W. B. Browder, Jr., Charles L. Tighe, Midland, Tex., for appellee, Stubbeman, McRae, Sealy & Laughlin, Midland, Tex., of counsel.

Before BELL, GODBOLD and DYER, Circuit Judges.


Boston Insurance Company brought a declaratory judgment action in the United States District Court for the Northern District of Texas, seeking to have declared that it is not liable to Malone and Hogan Hospital Foundation, as insured, and to Forrest Gambill, an injured claimant, under a liability policy Boston had issued to the hospital, by reason of the hospital's failure to give notice to Boston of injury to Gambill.

Boston moved for an instructed verdict at the conclusion of the evidence. The court was of the opinion that Boston was entitled to judgment as a matter of law but followed the recommended practice of submitting possible fact issues to the jury so that remand for a new trial might be obviated if on appeal this court found him in error.

The jury returned its verdict by answer to special interrogatories finding that the administrator of the hospital made a full, complete and fair investigation of the occurrence and on the basis thereof reasonably concluded that it was of such nature that it would not reasonably be expected to result in any claim or liability. The court then granted Boston's motion for judgment n. o. v. The hospital has appealed.

We are in full accord with the findings of fact and conclusions of law set out by the trial court in its well-considered opinion, D.C., 269 F. Supp. 19. The evidence entitled Boston to judgment as a matter of law. The motion for judgment n. o. v. was properly granted.