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BALLOU v. BASIC CONSTRUCTION COMPANY

Nos. 12453, 12454.

407 F.2d 1137 (1969)

Ernest W. BALLOU, Trustee in Bankruptcy for Virginia Prestressed Concrete Corporation, Third-Party Defendant, Appellant, v. BASIC CONSTRUCTION COMPANY, Plaintiff, The Fidelity and Casualty Company of New York, Defendant and Third-Party Plaintiff, Elmer Paul Hayes, et al., trading as Hayes, Seay, Mattern and Mattern, Roy O. Allen, et al., trading as Skidmore, Owings and Merrill and Community Hospital of Roanoke Valley, Third-Party Defendants, Appellees. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant and Third-Party Plaintiff, Appellant, v. BASIC CONSTRUCTION COMPANY, Appellee.

United States Court of Appeals Fourth Circuit.

Decided March 6, 1969.

Attorney(s) appearing for the Case

John S. Davenport, III, Richmond, Va., (William R. Cogar, Collins Denny, III, and Mays, Valentine, Davenport & Moore, Richmond, Va., on brief) for appellant Ballou.

S. D. Roberts Moore, Roanoke, Va., (Gentry, Locke, Rakes & Moore, Roanoke, Va., Edward A. Shure, and Shure & Bruder, New York City, on brief) for appellant Fidelity and Cas. Co. of New York.

Lewis T. Booker, Richmond, Va., (Robert F. Brooks, and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief) for appellee Basic Construction Co.

M. Caldwell Butler, Roanoke, Va., (A. Linwood Holton, Jr., and Eggleston, Holton, Butler & Glenn, Roanoke, Va., on brief) for appellees Elmer Paul Hayes, and others.

Wilbur L. Hazlegrove, Roanoke, Va., (Daniel S. Brown, and Hazlegrove, Carr, Dickinson, Smith & Rea, Roanoke, Va., on brief) for appellee Community Hospital of Roanoke Valley.

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

SOBELOFF, Circuit Judge:

This litigation illustrates the predicament which may arise when a loss must be assigned to one or more of the parties, none of whom had full power or responsibility to avert it.

Basic Construction Company, the general contractor for the erection of Community Hospital in Roanoke, Virginia, sued Fidelity and Casualty Company of New York, the surety on a performance bond given by a subcontractor, Virginia Prestressed Concrete Corporation...

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