Auto Mut. Indem. Co. v. Shaw
Decision Date | 09 November 1938 |
Citation | 184 So. 852,134 Fla. 815 |
Parties | AUTO MUT. INDEMNITY CO. v. SHAW. |
Court | Florida Supreme Court |
On Rehearing December 16, 1938.
Error to Circuit Court, Orange County; Frank A. Smith, Judge.
Suit by John W. Shaw against the Auto Mutual Indemnity Company on an insurance policy, which was given to protect and save harmless on account of damages and injuries resulting from accidents or collisions while one J. B. Jarrell was conducting or doing a taxicab business. To review a judgment in favor of the plaintiff, the defendant brings error.
Judgment reversed and new trial granted as to the second count of the declaration.
G. B. Fishback, of Orlando, and C. L. Waller, B. A Meginniss, and Chas. H. Spitz, all of Tallahassee, for plaintiff in error.
Maguire & Voorhis, of Orlando, for defendant in error.
This cause is here on writ of error to a judgment in behalf of the plaintiff below entered by the Circuit Court of Orange County, Florida. The suit was brought on an insurance policy which was given to protect and save harmless on account of damages and injuries resulting from accidents or collisions while one J. B. Jarrell was conducting or doing a taxi cab business in the City of Orlando. The declaration is in two counts. The first alleged the recovery of a judgment by plaintiff against J. B. Jarrell for the sum of $9500 for personal injuries sustained due to the negligence of the said J. B. Jarrell. The bodily injuries of the plaintiff were such as to come within the promise and undertaking of the said policy of insurance issued by the Auto Mutual Indemnity Company. Writ of execution issued on said judgment against J. B. Jarrell, doing business as the Economy Taxi Cab Company, and a return of nulla bona was made thereon by the Sheriff of Orange County, Florida.
The second count contained the material allegations of the first and charges negligence and bad faith on the part of the insurance company for not paying or settling the said claim against it, and other allegations thereof are, viz.:
The case was tried on a plea of legal tender as to the first count and a plea of not guilty as to the second count. The plaintiff filed two replications as to the plea of legal tender. On November 21, 1936, a verdict and judgment for the plaintiff was entered, viz.:
'And on the 20th day of November, A. D. 1936, during the Fall Term of said Court, came the respective parties in person and by their attorneys and submitted said cause on the issues joined between them to a jury, to-wit: J. M. Simmons and five others, who having been duly sworn according to law, and having heard the evidence, the argument of counsel for the respective parties, and the charge of the court, and having retired and considered the same, returned the following verdict in open court, to-wit:
'We, the Jury, find for the plaintiff on the first court, and assess his damages at the total of the following sums: $5000.00 plus $63.80 plus $533.97 as surgical aid made necessary by such accident plus $800.00 as a reasonable sum as fees or compensation for plaintiff's attorneys in this cause.
'J. M. Simmons, Foreman.
'And the court having determined that the plaintiff is now entitled to recover the said sum of $10,097.77 and that defendant has paid into Court the sum of $5764.59, which sum the Clerk is directed to pay to plaintiff's attorneys,
'It is thereupon considered, ordered and adjudged by the Court that the said plaintiff, John W. Shaw, do have and recover of and from the said defendant, Auto Mutual Indemnity Company, a corporation organized and existing under the laws of the State of New York, the sum of Four Thousand three handred thirty-three and 18/100 Dollars ($4,333.18), together with his costs herein expended and herein taxed at $82.62, for which let execution issue.' $A motion was made by the defendant for a new trial and overruled and denied by the lower court when final judgment was entered and writ of error taken, transcript of record perfected, and the cause is here for review on a number of assignments of error. The pertinent portions of the insurance policy are, viz.:
'Auto Mutual Indemnity Company of New York (Hereinafter called the Company)
'Section I--Agreements
'Does Hereby Agree. * * *
'1. Bodily injuries. To pay, within the limits specified in Statement 3, the loss from the liability imposed by law upon the Assured for damages on account of bodily injuries, including death resulting at any time therefrom, suffered or alleged to have been suffered by any person or persons as the result of such accidents. * * *
'3. Defense. To defend, in the name and on behalf of the Assured, any claim or suit against the Assured, even if groundless, to recover damages on account of bodily injuries and/or property damage covered hereby.
'4. Expense. To pay: (a) for the immediate surgical aid made necessary by such accidents; (b) all expenses incurred by the Company for investigation, negotiation, and defense of claims and suits; (c) all premiums on attachment and/or appeal bonds, and all costs taxed against the Assured, in suits for damages on account ob bodily injuries and/or property damage covered hereby; (d) all interest accruing on the full amount of any judgment in such suit (less that part, if any, of the judgment which is for property damage if Agreement 2 is not in effect), if on account thereof the Company is liable for any payment under any of the foregoing Agreements, until the Company shall have delivered its check, to the judgment creditor or to his attorney of record, in payment of its liability under said Agreements.
'5. Insolvency or Bankruptcy of Assured. The insolvency or bankruptcy of Assured shall not release the Company from any payment otherwise due hereunder, and if, because of such insolvency or...
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