NOTICE TO COUNSEL t~~ssion,~ court ·~ '' Howard G. Turner

NOTICE TO COUNSEL

This case probably will be called at t~~ssion,~0court o be held • ·~ ''

You will be advised later more definitely as to the date. Print names of counsel on front cover of briefs.

Howard G. Turner, Clerk

IN THE

Jpreme Court of Appeals of Virginia AT RICHMOND

Record No. 7175

VIRGINIA:

In the Supreme Court of Appeals held a t the Supreme Court of Appeals Building in the City of Richmond on Tuesday the Jlth day of March, 1969.

LESTER GROSSMAN,

against

GLENS FALLS INSURANCE COMPANY,

Plaintiff in error,

Defendant in error.

From the Circuit Court of the City of Norfolk Clyde H. Jacob, Judge

Upon the petition of Lester G.rossman a writ of error is awarded him to a judgm<'nt r<'ndered by the Circuit Court of the City of Norfolk on the 24th day of September, 1968, in a certain motion for judgment then therein depending, wherein the said petitioner was plaintiff and Glens Falls Insurance Company was defendant; upon the petitioner, or some one for him, entering into hon<l with sufficient sccnrity hefore the clerk of the said circui t court in the penalty of $300, with condition as the law directs.

2 Supreme Court of Appeals of Virginia

RECORD

• • • • •

page 1 ~

• • • • •

ASSIGNMENTS OF ERROR

Pursuant to the Rules of the Supreme Court of Appeals, the plaintiff assigns the following Assignments of Error :

(1) The Court erred in sustaining the defendant's Demurrer to the Motion for Judgment.

(2) The Court erred in dismissing the Motion for Judgment of the plaintiff filed herein.

page 2 ~ (3) The Court e.rred in refusing to permit the plaintiff to amend the Motion for Judgment.

• • •

Lester Grossman

By : Augustus Anninos Of Counsel

• •

Filed Nov. 18, 1968. T.A.W. Gray, D. C .

• • • • • page 3 ~

• • • • •

MOTION FOR J UDGMEKT

Lester Grossman, plaintiff herein, moves the Circuit Court for the City of Norfolk, Virginia, for a judgment and award of execution against Glens Falls Insurance Company, defendant, for the sum of Seven Thousand Three Hundred ThirtyFour Dollars and Seventy-Five Cents ($7,334.75) damages, with interest thereon from May 13, 1968, until paid, and the costs of this proceeding, for this, to-wit:

First: The plaintiff, Leste.r Grossman, received personal injuries in an automobile accident which occurred on Novem-

Grossman v. Glens Falls Ins. Co. 3

ber 13, 1966. Thereafter, the plaintiff brought suit against Oscar Everett, who lived at 1532 West 45t.h Str eet, NoTfolk, Virginia, in this Honorable Court. A jury returned a verdict in the amount of $7,300.00 on May 13, 1968, and costs in-

cident to this suit in the amount of $34.75. page 4 r S econd : At all times material herein, the plain-

tiff was one of the named insured under a policy issued by Glens Falls Insurance Company.

Thi1·d: At all times material herein, Oscar Everett was one of tl1e named insured unde.r a policy issued by State Fire and Casualty Company of Miami, Florida. Plaintiff, however, was of the opinion that Oscar Everett was an uninsured motorist because of information and belief that said insurance company was unable or was refusing to satisfy settlements r eached with opposing parties or judgments r endered against its insured. The plaintiff, therefore, advised l1is own liability carrie.r, the defendant, Glens Falls I nsnrance Company, that Oscar Everett was an uninsured motorist and served a copy of the pleadings in the suit against Oscar Everett on the defendant, Glens Falls Insurance Company, so that the plaintiff could avail himself of the uninsured motor ist coverage of his policy with Glens Falls Insurance Company. Counsel <'mployed by State Fire and Casualty Company of Miami, Florida, answered on behalf of Oscar Everett and appeared and defended him at the trial on May 13, 1968. Said counsel made no motion on bel1alf of Oscar Everett after the ury verdict was rendered, and demand was accordingly made on said counsel that said judgment and costs be satisfied. The said State Fire and Casualty Company has fai led to pay said judgment and costs which it was legally obligated to pay under its contract with Oscar Everett. 'rhereaft<'r plaintiff made demand on the defendant, Glens Falls Insnrance Compan~-, to satisfy its obligation under the

nninsnred motorist provisions of its contract with page 5 r the plaintiff. The said Glens Falls Insurance Com

pany lms r efused to pay said judgment in the amount of $7,300.00, and costs in the amount of $34.75.

\VliEREFORE, plaintiff prays judgment against the defendant in the sum of $7,334.75, together with interest from May J 3, 1968, and costs, by r eason of the foregoing, demand for which is ]1ereby made.

Lester Grossman,

By: Guy E. Daugherty Of Counsel


Filed in the Clerk's Office the 20 day of June, 1968.

Teste: W. R. Hanckel, Clerk

Irma F. Veazey, D. C .

• • • • • page 7 r

• • • • •

DEMURRER

The defendant, by counsel, comes and says that plaintiff's Motion for Judgment herein is insufficient in law. And, as the ground of its Demurrer, the defendant says :

1. That said Motion for Judgment fails to state a cause of action against the defendant.

2. That the facts recited in the Motion for Judgment disclose that plaintiff has no cause of action against the defendant.

Glens Falls Insurance Company,

By Lawson Worrell, Jr. Counsel

• • • • •

Filed 7/ 15/68. T.A.W. Gray, D. C.

• • • • •

page 8 r • • • • •

In the Circuit Court for tJ1e City of Norfolk

• • • • •

OR.DER

This action came on to be heard upon the Demurrer heretofore filed by the defendant, and was argued by counsel.

And the Court being of the opinion that the said Demurrer


ought to be sustained, it is accordingly so ORDERED. And it is further ORDERED that this action be, and the same hereby is, dismissed. To which said actions of the Court the p laintiff, by counsel, duly excepted. Plaintiff's motion to amend is likewise overruled to which plaintiff excepts.

I ask for the entry of this Order:

Lawson Worrell, Jr. Counsel for Defendant

Seen objected and excepted to

A. Anninos, p. q.

To the Clerk of the Circuit Court of the City of Norfolk. Enter this order in vacation 9-24, 1968.

Clyde H. Jacob, Judge .

• • • • page 1 ~

• • • •

BEFORE : The Hon. Clyde H. Jacob, Judge, Norfolk, Virginia, Novembe.r 22, 1968

APPEARANCES:

•

•

Messrs. Howell, Anninos & Daugherty, by Mr. Augustus Anninos, appearing on behalf of the plaintiff.

Messrs. Williams, Worrell, Kelly & Worthington, by Mr. Lawson W on·ell, appearing on behalf of the defendant.

page 2 ~ I N CHAMBERS

The Court: All right, gentlemen. Mr. Worrell: Judge, I would like to inquire before Mr. An

ninos says anything more as to why he has a Court Reporter


to take down this matter. H e gave me notice yesterday that he wants your Honor to certify a paper which he calls a transcript of proceedings, this being something like the fiftysixth or fifty-seventh day af ter judgment. And 1 don't lmow why a Court Reporter.

We are obviously not going to take evidence. Your Honor lost jurisdiction of the matter twenty-one days after the judgment and you, of course, have the right to look at this paper he offers to see whether it is, in fact, a-whether it is a transcript of proceedings within the Statute.

And I submit there is no r eason fo r this lady to take down anything. It can't become a part of any r ecord. Your Honor has no jurisdiction.

Mr. Anninos: You just don't lmow. I think I am entitled to a certification of what the proceedings are. Out of a r ecent case, Judge Smith, whe.re he had r efused to certify a r ecord where there was no Court Reporter, the Court says-the

Cour t has to certify if counsel can't r econcile their page 3 ~ differences, the Court has to certify r ecord of the

pr oceedings. If the Court cannot then a new trial ough t to be g iven.

CWhereupon, there was a discussion off the reco.rd.)

Mr. vVon·ell : If your Honor please, this is a simple case that came up on motion for judgment and demurrer. There was oral argument by counsel for the plaintiff and counsel for the defendant and your Honor sustained the demurre.r and r efused to permit the plaintiff to file an amended motion for judgment. And an order was submitted and entered by your Honor overruling the demurrer, r efusing the plaintiff lea,·e to amend and dismissing the action. Now, that is the record.

This pape.r which he has giYen me notice he intends to fil e is called on the first page that he will tender a transcript of the evidence and testimony at the tri al. Of course, there was no testimony and there was no trial.

On the second page he refers to a statement of proceedings. Oral argument by counsel is not proceedings, where you have no testimony. Your proceedings are the pleadings which are

filed and the Court's .rulings. The entire r ecord is page 4 r here. It is all that ever goes llp in a case that is

taken up when a demurrer has been sustained. And neither the Court nor I should be reqnired to remember what Mr. Anninos argued orally with r eference to his position con-


cerning the demurrer. And I submit the Court ought not to enter this order.

If Mr. Annjnos wanted anything more he could have tendered to your Honor a draft of amended motion for judgment and said, "Now, this is what I would like to do, this is how I would like to amend it." And if your Honor refused to do it, marked it "Refused" it would be a part of the record.

He is now trying to come in on the fifty-seventh o.r fiftyeighth day and trying to include in the r ecord what he argued in the Court, which is not testimony and not proceedings. The proceedings ar e already in the record. There is just nothing more to be done.

Mr. Anninos : May I just make one observation, your Honor~

The rules expressly say, I think it is Rule 5: number one, Paragraph 3, I believe-I may be in error as to that-

The Court: That has to do with the record. Mr. Anninos: Yes, sir, and proceedings.

page 5 r The Court : And the number of days you are allowed and how soon the Judge can act on it or if

the Court can't recollect or the parties don't agree on what was said. But having heard both of you I don't see that there is anything at all that could be added to it.

Now, the theory would be, if counsel can't agree, then the Court has the burden of supplying the .record based on recollection. But there is nothing to be recalled.

I am not in a position to make any comment on the evidence that was never introduced.

Mr. Anninos: The only thing I wanted for the Court of Ap-peals to have is the benefit of the proceedings that took place.

The Court: It is set out there in what you read. }[r. Anninos: Yes, but I want to except. Mr. Worrell: Yon have got the motion for judgment. You

have got my demurrer which says it is insufficient in law, your Honor's order, which sustains that position. You have got it in the record.

The fact that Mr. Anninos moved for leave to amend and your Honor refused, that is the record. If he had

page 6 r a Reporter here and argued for an hour and a half and brought your Honor a thirty-page tran

script of his argument you shouldn't certify that to be in the record, no part of the case. The only argument is before a case where you are taking the position that it is improper argument.

Mr. Anninos : The only thing I want to go in the record~


you have written in the order itself, dated the 24th of September, 1968, plaintiff's motion to amend is likewise overruled, to which plaintiff excepts.

Mr. Wo.rrell: That is rigllt. You askf'd me to bring it in there and I did.

Mr. Anninos : Because it was taken up before the Court and the Court ruled. And I just want to say that we are entitled to have the proceedings that took place between the Court and the two attorneys made into a transcript and certified by the Court.

The Court : To point to any of tlw rules of the Supreme Court-can you point to any of the rnles of the Supreme Court giving you that righH

Mr. Anninos : It says transcript of proce0dings. And the only thing- all rigllt, tl1is is from Rule 5 :l Section 3 entitled

CONTENTS OF RECORD. And it would actually page 7 r he 3 (e), under R11le 5.

"Oral t cstimonv"-this is the contents of the record-"Oral testimony and other incidents of the trial or hearing transcribed by a r eporter, and any written statement of facts, testimony or other inciilcnts of the case become part of the recoril when delivered to the Clerk, if the transcript or statement is signed at the end by counsel for all parties and tendered to the Judge within sixty days and signed by the Judge within seventy days after final judgment. It shall be forthwith delivered to the Clerk who shall certify on it the date he receives it." ·

It just refers to incidents. It doesn't say necessarily restricted to evidence taken in the case.

Mr. Worrell: F irst a trial and/ or hearing and this was neither a trial or hearing.

Mr. Anninos : Trial or hearing or other incidents. And we think this is material, your Honor. I will be perfectly frank with your Honor.

This is a situation where if I am granted a writ or if I go before Judge EgglPston and he says this plaintiff's motion to amend is likewise overruled to which plaintiff excepts, what was the grounds fox your motion to amend. I think

they have a perfect r ight to ask that. page 8 r The only thing I am putting in here is what was

argued. Mr. Lawson Wo.rrell does not deny what I have represented to you, Judge.

Mr. Worrell: I have no recollection of it. That is the reason I neither deny or affirm. vVe argued this case for about 45 minutes and I wasn't paying much attention to your argument.


Mr. Anninos: Now, you put in here yourself that my motion to amend was overruled. So the only xeason it was overruled, which you had that case which you were relying on, too, the case of State Fa1·m Mut'ttal v. B1·ow e1·, 204 Va. 887 134 SE 2nd 277. The only thing I want is the Court to see that I want to amend that in a denial of coverage in the motion for judgment.

The Court: You can stop right there anrl take the case up, couldn't von ~

Mr. Aiminos : That is what we haYe done. The Court: You could have stopped and made known what

your position is, your grievance was. But yon haven't shown anything, indica ted what has been agreed.

:Mr. Wo.rrell : As a matter of fact, to go back a little bit, we came around here and argued the demurrer and your

Honor sustained it and told me to draw the order page 9 ~ sustaining H. And I sent it to Mr. Anninos and it

took me abont two weeks to get him to agree to send the order back here. And when he came around he then, for the first time, said he wanted to amend his motion for judgment. So he had two weeks o.1· at least a week or ten days in which to draft a paper and put it in the r ecord to say, "Judge, this is how I want to amend my motion for judgment, will you let me do it." And if you said no, you would have marked it "Refused" and it would be in the papers.

He comes in now, here fifty-six or fifty-seven days after oral argument where we had no Court Reporter and just arguing the law and wants to come in here and put something in the r ecord that is just not in it. And there is no reason for your Honor to r ecall what his grounds were or any r eason for me to remember.

The Court: The Court passed on it. Mr. Anninos : Let me just say that I couldn't have come in

here on the 24th of September, 1968, with an amended motion for judgment because 1 didn't know what the Court's position was going to he.

Mr. Wo.n·ell: Yes, you did. We had already argued the thing and the Court sustained it. I drafted an order and you

called me and said you wanted to talk. page 10 ~ Mr. Anninos : His IIonor heard the argument,

Lawson. On the 24th of September you waited, got the original of the orrler and went downstairs and had it photocopied.

Mr. Worrell: Just a minute, Gus, on September 20th I wrote a letter. This is to advise 1 will appear befoxe the Court on the 24th and ask for an entry of the order carrying into ef-


feet Judge Jacob's decision in the above matter. We had already argued and he had already sustained the demurrer and he was trying to get you to endorse the order carrying it into effect. That was not until you got around here and said, "Judge, I want to ask for leave to amend." And the Court r efused and I put it in there in my own writing.

Mr. Anni.nos : Let me put in the r ecord that the only reason I am here is to request the Court to certify the proceedings that occurred in this Court in connection with this matter. And that is in connection with what transpired which led up to the entry of the fin al oxder dated the 24th of September, 1968. And I am quoting in the Judge's Chambers before his Honorable Judge Clyde H. Jacob, "Argument was had by

counsel before the Court on demur rer. Counsel page 11 r for both plaintiff and defendant r elied on State

F arm Mutual ver sus Brower, 204 Va. 887, 134 SE 2nd, 277, the defendant's position was that there had to be a denial of the coverage before the insured motorist 's position was involved. Plaintiff's position was the failure to pay by State F ire & Casualty Company as set forth in the motion for judgment was sufficiC'nt to invoke the uninsur ed motorist. The Court adopted th<' view that there must be a denial of the coverage. Therefore, plain tiff moved the Cour t to amend the motion. 'rh<' Court denierl the plainti ff's motion to whicl1 action of the Court plaintiff excepted.

This is what T most respectfully ask the Court to cer tify, the proceedings in this Conrt leading up to the order of September 24, 1968.

The Court : Yon object to it 1 Mr. Worrell: Yes, sir. I ask that yon mark it "Refused."

[t would go in the papers, in the Court papers, of course, but [ ask you to mark i t as r efused.

The Court: The Court ruled that it not be in the r ecord. Mr. Anni.nos: And T respectfully except to the Court's

ruling. • • • •

EDITOR'S ~OTE :

On the cover page enclosing the following notice, statement of proceedings and form of a judge's certi ficate is the notation

"Refused C.H.J. November 22, 1968"


EXHIBIT A

VIRGIJ\TIA : In the Circuit Court of the City of Norfolk

LESTER GROSSMAN, Plaintiff,

v.

Glens Falls Insurance Company, Defendan t.

Notice of Time and Place of Tendering the Trial Transcript to the Honorable Clyde H. Jacob, Judge

TAKE NOTICE: That on Friday, November 22, 1968, at 2 P. M., in the Chambers of The Honorable Clyde H. Jacob, Judge of the Circuit Court of the City of Norfolk, Virginia, the plaintiff, by and through his counsel, will tender to said Judge the transcript of the evidence and testimony at the trial of the above entit led case.

Howell, Anninos & Daughel'ty 808 Maritime Tower Norfolk, Virginia

Lester Grossman

By: Augustus Anninos Of Counsel

I hereby certify that on the 21st day of November, 1968, I delivered to Messrs. Williams, \Vorrell, K elly & Worthington, Virginia National Bank Building, Norfolk, Virginia, counsel of record for the defendant, a copy of the foregoing Notice.

A. Anninos Notice Accepted

l~awson Worrell, Jr .

• • • • •

Statement of proceedings on the above entitled case in the Circuit Court of the City of Norfolk on September 24, 1968, before The H onorable Clyde H. Jacob, Judge of said Court.

APPEARANCES : Howell, Anninos & Daugherty (Mr. Augustus Anninos) Attorneys for the Plaintiff


Williams, Worrell, Kelly & Worthington (Mr. Lawson Worxell, Jr.) Attorneys for the Defendant

page 1 ~ (In Judge's Chambers, before The Honorable Clyde H. Jacob)

Argument was had by counsel, for the Court, on the Demurrer. Counsel for both plaintiff and defendant relied on State Farm Mutual v. Brower, 204 Va. 887, 134 S. E. 2d 277.

The defendant's position was that there had to be a denial of coverage before the uninsu.red motorist provisions were invoked. Plaintiff's position was that the failure to pay by State Fire and Casualty Company, as set forth in the Motion for Judgment, was sufficient to invoke the uninsured motorist provisions under this case.

The Court adopted the view that there must be a denial of coverage. Thereupon, plaintiff moved to amend his Motion for Judgment to include such language. The Court denied the plaintiff's motion, to which action the plaintiff excepted.

page 2 ~ JUDGE'S CERTIFICATE

I, Clyde H. Jacob, Judge of the Circuit Court of the City of Norfolk, Virginia, who presided ove.r the proceedings of this case which led to the entry of the Order on September 24, 1968, do hereby certify that the foregoing is a true and correct statement of the trial proceedings of said cause, together with all motions and objections and exceptions by the parties and all rulings of the Court thereon, together with all the incidents of the trial of said cause.

I certify that this certincate has been tendered to and signed by me within the time prescribed by ~8-330 of the Code of Virginia for tendering and signing bills of exception and certificates of r ecord, and that reasonable notice in writing has been given to the attorneys for the defendant of the time and place at which said certificate has been tendered.

Given under my hand this day of N ovembe.r, 1968.

• •

A Copy-Teste:

Judge of the Circuit Court of the City of N orfollr

• • •

Howard G. Turner, Clerk.

INDEX TO RECORD

Page

Writ of Error Awarded ......................................................................................... 1 Record ........................................................................................................................................ 2 Assignments of Error ................................................................................................ 2 Motion for Judgment ............................................................................................... 2 Demurrer ........... ..................................................................................................................... 4 Judgment-September 24, 1968 ........................................................................ 4 P.roceedings ·····-······················· ·· ··························································································· 5 Judge's Certificate ......................................................................................................... 12

Documents

NOTICE TO COUNSEL t~~ssion,~ court ·~ '' Howard G. Turner