Ocean Accident & Guarantee Corporation v. Lucas

• Decision Date: 10 December 1934
• Docket Number: No. 6522.,6522.
• Citation: 74 F.2d 115,98 ALR 1461
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. LUCAS et al.
• Court: U.S. Court of Appeals — Sixth Circuit

98 ALR 1461, 74 F.2d 115 (1934)

OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. LUCAS et al.

No. 6522.

Circuit Court of Appeals, Sixth Circuit.

December 10, 1934.

N. P. Beall, of Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart and George William Cottrell, all of Cleveland, Ohio, on the brief), for appellant.

H. M. Roberts, of Cleveland, Ohio (Howell, Roberts & Duncan, of Cleveland, Ohio, on the brief), for appellees.

Before MOORMAN, HICKS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

Lauretta P. Lucas, appellee, was injured while riding as a passenger in the automobile of William A. Butler, appellee, who carried automobile liability insurance with the appellant. Mrs. Lucas sued Butler in the state court. The appellant defended the action. Judgment was rendered against Butler, and paid neither by Butler nor by the appellant. Thereupon Mrs. Lucas brought the present action under favor of section 9510-4 of the General Code of Ohio. The case was tried to a jury, which found for the plaintiff, and the District Court rendered judgment against the appellant.

Butler notified the appellant immediately after the accident, and signed a written statement for appellant, in which the occurrence was described. He testified in detail at the trial in the state court.

The appellant pleaded in the District Court that it was not liable upon the policy of insurance, upon the ground that Butler had failed to cooperate as required by the policy, and affirmatively pleaded that Butler's original signed statement and the answer in the state court signed by Butler set forth a defense of unavoidable accident, upon which the appellant relied, whereas Butler's testimony at the trial established a case of absolute liability. Mrs. Lucas in her reply denied failure to cooperate, and affirmatively pleaded that before the trial of the action in the state court, Butler stated to counsel for the appellant all of the facts pertaining to the accident in the same manner in which he testified at the trial of the action, and that with full knowledge of what Butler's testimony would be upon the trial, the appellant proceeded to defend, and thereby waived any claimed breach of the insurance contract.

The appellant urges (1) that the District Court erred prejudicially in receiving in evidence a transcript of the argument made by the defense counsel to the jury at the trial in the state court; and (2) that the District Court erred in charging the jury in substance that in order to sustain the defense of lack of cooperation, the variance between the statements and information given by Butler to the insurance company before the trial and his testimony at the trial had to be a conscious variance on his part, as well as a material and substantial variance.

The first objection arises out of the following facts: As evidence of "waiver" as well as of cooperation under the policy, counsel for Mrs. Lucas elicited from Butler the testimony that he, prior to the trial in the state court, had stated to the adjuster for appellant in substance the same story that he gave upon the trial in the state court. Counsel for appellant admitted that in a forty-five minute conference with Butler some twelve days before the state trial, Butler said to him in substance that just before the collision he started to accelerate his car, which was "new" to counsel. He added that at this conference "there were some respects with reference to the details of the happening of the accident that Mr. Butler told me existed that were not contained in the original statement that he signed."

The appellant then urged that at no time prior to Butler's testimony in the state court had it been aware of the version of the accident given by him on the trial, and offered testimony by its counsel in re-direct examination, that he was "surprised" at the testimony of Butler in the state court. As bearing on the question of counsel's surprise, to which the District Court limited its consideration, the transcript of the argument of counsel in the state court was offered and received in evidence. This argument in effect declared to the jury that the defense counsel thought the jury had been impressed throughout the case as to the fairness of Butler, his frankness, his truthfulness about every occurrence from the beginning to the end of the trip during which the accident occurred. The only objection made to the introduction of this evidence was that it was not relevant to the issues.

The main issue of fact in the case was whether Butler made full disclosure to the appellant before the trial of the facts to which he testified at the trial in the state court.

The evidence as to surprise was offered no doubt to show not only that there was failure to cooperate, but also that there...