Automobile Underwriters' Ins. Co. v. Long

• Decision Date: 04 October 1933
• Docket Number: No. 1430-6065.,1430-6065.
• Citation: 63 S.W.2d 356
• Parties: AUTOMOBILE UNDERWRITERS' INS. CO. v. LONG.
• Court: Texas Supreme Court

Page 356

63 S.W.2d 356

AUTOMOBILE UNDERWRITERS' INS. CO. v.LONG.

No. 1430-6065.

Commission of Appeals of Texas, Section B.

October 4, 1933.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Janie Long, administratrix, against Automobile Underwriters' Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [39 S.W.(2d) 1102], and defendant brings error.

Affirmed.

Cunningham, Moursund & Johnson, of San Antonio, and R. G. Storey, of Dallas, for plaintiff in error.

Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for defendant in error.

RYAN, Judge.

Janie Long, administratrix of the estate of James H. Long, deceased, sued the Automobile Underwriters' Insurance Company to recover on a policy of insurance insuring James H. Long against liability or loss resulting from damages on account of bodily injuries or death inflicted upon any person, and resulting from the use of a Packard automobile described in said policy and owned by said James H. Long.

While said policy was in force, on August 6, 1927, and while said automobile was being operated by said Long on a public road near the town of Gilmer, Tex., it crashed into a bridge or culvert upon the side of the road, alleged to have been the result of Long's negligence.

Gladys Long, a minor, was riding with him as an invited guest; she was thrown out of the car, received severe personal injuries, and on November 23, 1927, by her mother as next friend, filed suit against said James H. Long in the district court of Bexar county, to recover damages in the sum of $25,000.

Long gave notice of the accident to the company; the company at first denied all liability under the policy on the ground that Gladys Long was a member of the family of James H. Long, but later undertook the defense of the suit against James H. Long and employed counsel, who continued to defend him therein until they withdrew from the case upon the second trial thereof.

After such withdrawal of counsel, Gladys Long recovered judgment against James H. Long in the sum of $10,000.Said judgment was rendered on January 15, 1929.James H. Long died soon thereafter, on January 25, 1929, and Janie Long, his wife, was appointed and qualified as administratrix of his estate.In her capacity as administratrix, under orders of the probate court, she borrowed the necessary funds and paid said judgment (which then amounted to the sum of $10,516, principal and interest) to the guardian of Gladys Long, after which she brought the present suit against the insurance company to recover upon the policy.

The trial court, without a jury, rendered judgment against the company in the sum of $5,533 (said sum being $5,000 stipulated in the policy, together with legal interest from the date of the judgment against James H. Long), which was affirmed by the Court of Civil Appeals.39 S.W.(2d) 1102.

Opinion.

First.Plaintiff in error contends that certain conduct of James H. Long constituted a failure on his part to co-operate with the company in the defense of the suit of Gladys Long, as required by the policy, and therefore violated its terms.More specifically the conduct complained of is summarized in the application for writ of error, as follows:

(1) That Long retracted the written reservation of policy rights which he had theretofore executed upon the day of the trial of the cause.

(2) That he employed counsel to file suit against him in behalf of his niece.

(3) That he retracted and disputed his previous written statement regarding how the accident occurred.

(4) That he admitted in his testimony that he wanted to see the plaintiff recover.

(5) That he notified defendant's attorneys that he would retract his written statements, especially regarding the speed of his car.

(6) That he had been taking the advice of plaintiff's attorneys rather than the advice of his own attorneys employed by the defendant to represent him in the original case.

(7) That he denied the truth of statements contained in pleadings filed with his knowledge and consent and signed by him, and retracted a portion thereof.

(8) That he admitted to plaintiff and plaintiff's attorneys that he was liable in damages and wanted a judgment rendered against him so that recovery could be made against the defendant insurance company.

(9) That he continually conferred with plaintiff's attorneys, that he consulted them before the plaintiff ever did so, and made arrangements to employ them in order to bring suit against him.

Whether Long failed to co-operate in the particulars named, was, of course, a question of fact, which was decided adversely to the company by the trial court, affirmed by the Court of Civil Appeals.

To sustain the company's contention, it must therefore be assumed that under the evidence in the case, there was no dispute as to the controlling and material facts and that they led inevitably to the one and only conclusion that Long did not comply with the terms of the policy in that respect.

On this subject, the policy provided: "The Subscriber * * * shall immediately forward to the Attorneys every notice, summons or other process served on him on behalf of third persons, when the Exchange will, at its own cost, defend in the name and on behalf of the Subscriber, suits covered in Clauses Four and Five hereof.The Subscriber shall aid in securing information, effecting settlements and prosecuting appeals, but no person shall (without the written consent of the Attorneys previously given) voluntarily assume or admit any claim, except at his own cost.In the event any claim of any character be asserted against the Subscriber by any person or persons during the term of this Contract, the Subscriber shall render such aid and assistance in the investigation of said claim as may be required of him by the Exchange, and in the event of suit on such claim the Subscriber shall assist in securing the attendance of all witnesses and shall at all times be in personal attendance upon the trial of the suit; Provided further that the failure of the Subscriber to assist or cooperate in any of the particulars herein last above set forth, shall render this Contract null and void and relieve the Exchange of any liability hereunder."

The agreed statement of facts shows that Long gave the required notice of the accident to the company, it obtained statements from him, and investigated all facts in connection therewith, and when the suit was filed employed attorneys after receiving from Long the citation which had been served upon him.Such agreed statement of facts shows also that each time Long was notified by the defendant company, and each time that the case was set for hearing, he attended court at his own expense, whenever requested by the insurance company.

The insurance was: "Against direct loss resulting directly from the manipulation or use of any automobile described herein, by reason of the liability imposed by law upon Subscribers, for damages on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon any person or persons during the contract period, liability at the Exchange being limited to Five Thousand Dollars for injury to or death of any person, and, subject to the same limit for each person, limited to Ten Thousand Dollars for any one accident involving injury, to or death of several persons.In addition to these limits, however, the Exchange will also pay the cost and expense attendant upon the investigation, adjustment and settlement of claims, all costs taxed against the Subscriber, in any legal proceedings defended by the Exchange as provided in Condition B, and all interest accruing after entry of judgment upon such part thereof as shall not be in excess of the Exchange's liability as herein expressed; and such immediate surgical relief as is imperative at the time of the accident."

The policy provided also, "The Exchange will also defend in the name and on behalf of the Subscriber any suits which may at any time be brought on account of such injuries and demanding damages therefor, although such suits, allegations or demands are wholly groundless, false or fraudulent," but did not cover "any obligation assumed by or imposed upon, the subscriber to any member of the family or household of the subscriber."

It thus appears that Long did comply with the terms of the policy unless it should be held that he failed to co-operate with the company in the particulars above stated, and that such failure constituted such a breach of...