Buckner v. Buckner

• Decision Date: 08 March 1932
• Citation: 241 N.W. 342,207 Wis. 303
• Parties: BUCKNER v. BUCKNER ET AL.
• Court: Wisconsin Supreme Court

207 Wis. 303

241 N.W. 342

BUCKNER

v.BUCKNER ET AL.

Supreme Court of Wisconsin.

March 8, 1932.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Action by Perry C. Buckner against Homer M. Buckner, in which defendant filed cross-complaint against the General Casualty Company of Wisconsin. From a judgment dismissing the cross-complaint, defendant appeals.--[By Editorial Staff.]

Affirmed.

Action begun March 26, 1929; judgment entered December 31, 1929. Failure of insured to co-operate with insurer. The General Casualty Company of Wisconsin, hereinafter called the company, issued an indemnity policy to the defendant Homer M. Buckner, hereinafter called the insured, by the terms of which the company undertook to indemnify the insured to the extent of $10,000 “(A) against loss and/or expense arising or resulting from claims upon the Assured for damages * * * by reason of the ownership, maintenance and/or use of any of the automobiles enumerated and described in the Schedule of Statements.” Also:

“(C) To investigate all reported accidents covered hereby; to defend for the Assured any suits, even if groundless, brought against the Assured to recover damages covered by insuring Clauses A and/or B, unless the company shall elect to effect settlement thereof;

(D) To pay, irrespective of the limits of liability hereinafter mentioned, all expenses incurred by the company for investigation or defense, including all costs taxed against the Assured in such suits, and all interest accruing after entry of judgment.”

The company also reserved to itself the exclusive right to contest or settle any suit, and the insured was by the terms of the policy prohibited from in any manner interfering with any negotiations for the settlement of any suit or claim or with the conduct of any legal proceedings, arising under the policy.

By the terms of the policy, the insured agreed:

“(2) Upon the occurrence of any loss or accident covered hereunder, the Assured shall give immediate written notice to the Company at its Home Office in Madison, Wisconsin, or to its authorized agent, with the fullest information obtainable at the time.

The Assured shall not interfere in any way respecting any negotiations for the settlement of any claim or suit, nor in the conduct of any legal proceedings, but shall, at all times at the request of the company render it all possible cooperation and assistance and aid in effecting settlement, securing information and evidence, and the attendance of witnesses. The Assured shall not voluntarily admit any liability for an accident and no loss arising from a liability which has been voluntarily assumed by the assured shall be covered hereunder.”

The policy also contained the following provision: “(11) This Policy shall be void if the Assured or his agent has concealed or misrepsented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof, or if the Assured or his agent shall make any attempt to defraud the Company either before or after the loss.”

The plaintiff, Perry C. Buckner, resides at Rossville, Ill., and is a brother of Homer M. Buckner, the insured. On January 30, 1927, while the plaintiff was visiting at the home of his brother, the insured, at Mt. Horeb, the insured, accompanied by plaintiff, started for Madison in a Ford automobile, being one of those described in the policy. Just before starting, the insured, in the presence of the plaintiff, removed the chains from the rear wheels of the car so that he could drive faster, to which the plaintiff made no objection. When about half a mile from Mt. Horeb and while going down hill, the car caught in a rut, was thrown into or against a snow bank and tipped over, as a result of which plaintiff's leg was broken. The insured was a physician and surgeon and took the plaintiff to his own hospital in Mt. Horeb, where he remained until about April 5, 1927, when he returned to Illinois. When the plaintiff left the insured handed him a bill for $655 for treatment and care in the hospital, which the plaintiff promised to pay. On April 7, 1927, the plaintiff through his Illinois attorney, made a demand upon the insured for damages on account of injuries sustained by the plaintiff in the accident, the damages claimed being $28,000. In the meantime the insured had reported the accident to the company and the company had referred the matter to its attorneys. A questionnaire was submitted by the company's attorneys to the insured which the insured answered.

Subsequently, an action was begun in the courts of the state of Illinois by the plaintiff against the insured. Service of process was made upon the insured while he was within the state of Illinois, on May 9, 1927. The insured admitted that he knew that the plaintiff was about to sue him. He further admitted that the plaintiff's son, his nephew, had driven him to Illinois. He first testified that he went to Illinois to visit relatives and afterward that he was there on business. He testified upon the trial that there was no conversation between him and the plaintiff about a letter he received from plaintiff's lawyer. Service of process was made at Danville in the presence of the plaintiff. The insured then returned to Wisconsin, wrote the attorneys for the company, alleging that he did not know that he could be served in the state of Illinois, and expressed the wish that the attorneys would fix up the case. On October 12, 1927, the depositions of witnesses were taken, including that of the insured. The company claimed that the testimony of the insured as given in his deposition varied widely from the statements made by the insured in response to the questionnaire and was of such a character as to lead the attorneys for the company to conclude that the insured was not co-operating in the defense of the claim as required by the terms of his policy. Thereupon the attorneys for the company notified the insured that the defense of the case was up to him; that they were ready and willing at all times to be of any assistance. The company offered to continue to conduct the defense provided the insured would permit the company to reserve the question of whether the insured had breached his contract. This the insured refused to do. The company's attorneys in Illinois withdrew from the case, judgment by default was entered in the state of Illinois for $3,045.80 in favor of the plaintiff and against the insured, whereupon the plaintiff commenced suit in the circuit court for Dane county to domesticate the judgment in the state of Wisconsin. The company was impleaded as a defendant, and the insured sought to recover judgment against the company for any amount adjudged to be due from him to the plaintiff. There was a trial before a jury. At the close of the evidence, the court directed a verdict in favor of the company as against the insured. The plaintiff had judgment against the insured, and the insured appeals from that part of the judgment dismissing his cross-complaint against the company.

Other facts will be stated in the opinion.

Riley & Ohm, of Madison, for appellant.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondent.

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