Bauman v. W. & S. Indemnity Co.

• Citation: 77 S.W.2d 496
• Decision Date: 31 December 1934
• Docket Number: No. 23170.,23170.
• Parties: MARY BAUMAN, RESPONDENT, v. THE WESTERN AND SOUTHERN INDEMNITY COMPANY, A CORPORATION, APPELLANT.
• Court: Court of Appeal of Missouri (US)

77 S.W.2d 496

MARY BAUMAN, RESPONDENT, v. THE WESTERN AND SOUTHERN INDEMNITY COMPANY, A CORPORATION, APPELLANT.

No. 23170.

St. Louis Court of Appeals. Missouri.

Opinion filed December 31, 1934.

Appeal from the Circuit Court of the City of St. Louis. — Hon. John W. Calhoun, Judge.

REVERSED.

Wm. R. Schneider and P.M. Wishon for appellant.

(1) Failure on the part of the insured person to cooperate with his insurance company in the trial of a personal injury action against him, covered by his policy, whether that failure to cooperate evidences itself by his failure or refusal to personally attend the trial of the cause, or otherwise, such failure forfeits his insurance and his judgment plaintiff is not entitled to recover against the insurance company under the policy if the insurance company acted in good faith in the matter of seeking to obtain that cooperation. Bassi v. Bassi & Belt Auto Indemnity Ass'n, Garnishee (Minn.), 205 N.W. 947; Collins' Exrs. v. Standard Acc. Ins. Co. (Ky. App.), 185 S.W. 112; Finkle v. Western Automobile Insurance Co. (Mo. App.), 26 S.W. (2d) 843; Luck v. Ft. Dearborn Ins. Co. (Mo. App.), 54 S.W. (2d) 757; Nevil v. Wahl (Home Ins. Co. of N.Y. Garnishees), ___ Mo. App. ___, 65 S.W. (2d) 123; Rohlf v. Great American Mutual Ind. Co., 27 Ohio App. 208, 161 N.E. 232; Schoenfeld v. New Jersey Fidelity & Plate Glass Co., 197 N.Y. Supp. 606; Schneider v. Allen, 259 Ill. App. 543; Seltzer v. Indemnity Insurance Co., 252 N.Y. 330; Simpson on The Law Relating to Automobile Insurance, pp. 317, 358. (2) In an action by an injured person against an insurance company to recover the amount of a judgment obtained against the insured, the insurance company may assert any defense against the injured person which it might have asserted in an action against it by the insured. Finkle v. Western Automobile Insurance Co. (Mo. App.), 26 S.W. (2d) 843; Simpson on The Law Relating to Automobile Insurance, p. 317.

Otis M. Gallant and Marion J. Hannigan for respondent.

(1) The trial court, sitting as a jury, has the right to decide questions of fact, and its findings, if supported by any substantial evidence, should not be disturbed on appeal. Finkel v. Western Automobile Insurance Company, 26 S.W. (2d) 843; Nevil v. Wahl, 65 S.W. (2d) 123; Kierstead v. General Casualty & Surety Co., 67 Fed. (2d) 523. (2) There must be a material lack of cooperation for the assured to breach a condition of the policy. Finkel v. Western Automobile Insurance Company, 26 S.W. (2d) 843.

McCULLEN, J.

This action was instituted by respondent under Section 5899, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 5899, p. 4500), to recover from appellant the sum of $5000 with interest. The action is based upon a judgment in the sum of $7500 rendered in favor of respondent and against one M.S. Baird on account of personal injuries sustained by respondent on March 9, 1932, and upon a policy of liability indemnity insurance which had been issued to the said M.S. Baird by appellant prior to that date. A trial before the court resulted in a judgment in favor of respondent and against appellant for the amount sued for with interest, making a total of $5150 and costs. The case comes to this court by appeal.

Section 5899, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 5899, p. 4500), provides that upon the recovery of a final judgment against any person, firm or corporation by any person for loss or damage on account of bodily injury, if the defendant in such action was insured against said loss or damage at the time the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in such contract of insurance applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date of its rendition, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of such judgment.

The evidence shows that respondent sustained bodily injuries on March 9, 1932, when she was struck by a motorbus owned by M.S. Baird, who was appellant's assured in the liability insurance policy which was then in force and effect.

The policy insured Baird against loss from liability imposed by law upon him for damages by reason of the ownership, maintenance, or use of the motorbus which was involved in the accident. The liability of appellant for bodily injuries or death of one person was limited in the policy to $5000; the limit for one accident was $20,000. The policy contained the usual clause whereby the appellant agreed to give prompt and efficient service in investigating accidents and claims; in negotiating for settlement of or in contesting any such claims; in defending any suit, even if groundless, brought against Baird to enforce a liability covered by the policy, unless the appellant should elect to settle such suit; to pay, in addition to damages, all expenses incurred by the appellant for investigation; cost of legal proceedings defended by the appellant. Other provisions contained in the policy need not be mentioned here as they are not involved in this controversy.

Among the general conditions of the policy was a cooperation clause, which provided that upon the occurrence of an accident, the filing of a claim or the bringing of a suit covered by the policy the assured should give immediate written notice thereof to appellant, and immediately forward all information obtainable at the time, together with any documents, summons, process or other papers delivered to or served upon the assured. It was further provided therein that whenever requested by the appellant:

"The assured shall aid in effecting a settlement, obtaining information and evidence, the attendance of witnesses and in prosecuting appeals, and at all times render all possible cooperation and assistance."

Respondent brought her suit for damages in the Circuit Court of St. Louis County against Mert S. Baird, appellant's assured, who resided and had his place of business in said county. Appellant undertook to represent Baird in the defense of that suit in accordance with the terms of its policy, and in due time filed an answer on behalf of Baird therein. When that case was called for trial on November 29, 1932, Mr. Baird, defendant therein, failed to appear. At the request of appellant's attorneys who were representing Baird, in accordance with the provisions of the policy, the case was passed by the court to December 12, 1932, on which date Mr. Baird again failed to appear in court, and appellant, through its attorneys, withdrew from the case, setting forth in a stipulation, filed in the court that day, appellant's reasons for such withdrawal. The stipulation after reciting, among other matters, the efforts made by appellant to have Mr. Baird appear on the two dates when the case was set for trial, and his failure to do so, concluded by stating that Baird had thereby breached the cooperation clause of the policy. On the same date that appellant withdrew, the trial court laid the case over to December 14, 1932, on which date, according to the record, plaintiff therein appeared in person and by attorney and defendant Baird failed to appear although having answered. The court after a trial rendered its finding and judgment for plaintiff therein (respondent here) and against Baird as defendant in the sum of $7500 and costs.

The judgment against Baird in the damage suit became final and was not satisfied within the thirty day period provided in the statute, and thereafter respondent, as Baird's judgment creditor, brought this action against appellant.

Appellant contends that the court ignored the cooperation clause of the policy, and, therefore, erred in entering judgment for respondent. It is insisted by appellant that under the evidence showing that Baird, the assured, failed to comply with the terms of the cooperation clause, the judgment should have been for appellant.

Respondent contends on the contrary that the question as to whether or not the assured did comply with the cooperation clause of his policy was one of fact to be decided by the court, and that if the trial court's findings are supported by substantial evidence, this court should not interfere with such findings.

The statute under which this suit was brought designates the action as one in equity. It is well settled that in an equity suit, where there is a final judgment by the trial court, an appellate court is not bound by the findings of the trial court, and if it is not satisfied with such findings it will make its own findings of fact and render such judgment as the trial court should have rendered. [Noell v. Remmert, 326 Mo. 148, 30 S.W. (2d) 1009, 1013; Neville v. D'Oench, 327 Mo. 34, 34 S.W. (2d) 491; Krug v. Bremer, 316 Mo. 891, 292 S.W. 702.

Appellant in its defense in the case at bar pleaded that Baird, its assured, failed to cooperate with appellant in the defense of the damage suit brought against him by respondent whereby he breached the cooperation clause of the policy, and by reason thereof respondent was not entitled to recover a judgment for any sum against appellant.

The evidence shows that Mert S. Baird, appellant's assured, was the owner of a number of motorbusses, one of which, while being operated by Roy Chapel, one of Baird's chauffeurs, struck and injured respondent. It is conceded that Baird was not on or near the motorbus at the time respondent was injured, and was, therefore, not an eyewitness to the accident. When the deposition of Roy Chapel, driver of the motorbus, was taken in the damage suit it appears to have been admitted by appellant that Baird was the owner of the motorbus involved therein.

The question presented by this record, and upon which this case must be determined, is whether or not the conceded failure of Mert S. Baird to appear in court at the trial of the damage suit brought...