Alabama Farm Bureau Mut. Cas. Ins. Co. v. Cofield

• Decision Date: 20 December 1962
• Docket Number: 7 Div. 588
• Citation: 274 Ala. 299,148 So.2d 226
• Parties: ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., Inc. v. Imogene COFIELD et al.
• Court: Alabama Supreme Court

Page 226

148 So.2d 226

274 Ala. 299

ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., Inc. v. Imogene COFIELD et al.

7 Div. 588.

Supreme Court of Alabama.

Dec. 20, 1962.

Beck & Beck, Fort Payne, for appellant.

Scott & Scott, Fort Payne, for appellee Cofield.

J. A. Johnson, Fort Payne, for appellees Johnson.

SIMPSON, Justice.

Appeal by complainant from a decree of the DeKalb County Circuit Court, in Equity, denying relief on a bill for a declaratory judgment.

The chancellor determined that appellant would be required to defend a pending lawsuit filed June 5, 1961, growing out of an automobile accident; that respondents, Leroy Johnson and Carey (alias Gary) Johnson were entitled to the protection of the policy of insurance for any and all claims arising out of the action which had been prosecuted by respondent Imogene Cofield, as administratrix of David Cofield, deceased.

The bill as filed by appellant consisted of two aspects, which if proved, would release appellant as insurer of the Johnsons, from defending the pending suit at law. The first aspect alleged a violation of an exclusion clause of the policy, as follows: 'This insurance does not apply under any of the coverages while the automobile is operated in a pre-arranged race or competitive speed test.' The second aspect alleges a violation of the so-called 'co-operation clause', i. e., 'The insured shall cooperate with the Company, and upon the Company's request, shall attend hearings and trials, and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses in the conduct of the suits', in that Carey gave a false statement to appellant's agent on September 20, 1960, in effect that prior to the accident the automobiles were not being 'drag-raced' by a pre-arranged agreement. Carey later admitted on May 12, 1961 that the automobile was being raced just prior to the accident, but explained that at the time of the accident the 'drag-race' was over.

The evidence was undisputed that two cars, one driven by Donald Cofield in which David Cofield, deceased, was riding, and the other driven by Carey Johnson, had three 'drag-races' on the day David was killed. Appellee's evidence shows that at the time of the accident all racing was over and that the boys were going their separate ways, when the car driven by Donald Cofield began to slide on some gravel on the side of the road, crossed the road, hitting an embankment, throwing David from the car and injuring him, as a result of which he died.

A witness for appellant testified that she saw the two cars stop in front of her house and take off down the road together going side by side pretty fast, finally one car getting ahead of the other. Another witness stated that he saw the cars come up and stop, and start suddenly, attaining a rapid rate of speed until out of sight. This was shortly before David Cofield was killed, which occurred about one-half mile from where the witness observed the cars.

It will be decisive of the case at bar to determine from the evidence whether there was any racing at the time of th accident, because if the boys were not racing at that time, although they may have been some time during that day, the statement by Carey Johnson that there had been no racing would be immaterial and not a breach of the 'co-operation'...