Buffalo v. United States Fidelity & Guaranty Co., 1403.
| Decision Date | 17 July 1936 |
| Docket Number | No. 1403.,1403. |
| Citation | 84 F.2d 883 |
| Parties | BUFFALO v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. G. Austin, of Miami, Okl. (Commons & Chandler, of Miami, Okl., on the brief), for appellant.
Ray McNaughton, of Miami, Okl. (Arthur G. Croninger, of Miami, Okl., on the brief), for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
Willie Buffalo carried an automobile public liability policy with appellee, with coverage limited to accidents occurring while the automobile was "being personally driven by, or under the personal supervision of O. V. Jolley while in the sole employ of Willie Buffalo in the capacity of chauffeur." One night in 1929 Buffalo's automobile collided with the wagon of one Wyer, permanently injuring Wyer. Wyer sued Buffalo in the state court, the insurance company defending under an agreement that by so doing it waived none of its rights under the policy. Buffalo made a written statement to the company describing in circumstantial detail the doings of himself and Jolley on the night in question, which disclosed that neither he nor Jolley was in the car at the time of the accident. Both Buffalo and Jolley so testified at the trial of the personal injury suit. There was proof at the trial to the contrary. One of the questions submitted by the state court to the jury was whether Buffalo and Jolley were in the car when the collision occurred. The jury returned a verdict for $20,000 on which judgment was entered.
Execution being returned unsatisfied Wyer sued the insurance company under a provision of the policy that an injured person might sue thereon if execution against the insured were returned nulla bona. The company defended on the ground that Buffalo had failed to co-operate in the defense of the main suit, as the policy required, particularly in that he had stated and testified he was not in the car at the time of the accident, when in fact he was. Wyer admitted that Buffalo was in the car, as Wyer had testified in the main suit. Buffalo was not a party to this action; the pleadings of both parties admitted he was in the car at the time of the accident, and Buffalo had no opportunity to join issue on that allegation nor to establish that which he has at all times maintained — that he was not in the car. This court reversed a judgment in favor of Wyer, holding as a matter of law that, since Buffalo had made a statement of facts which both parties to the litigation conceded was false, the co-operation clause had been breached. United States Fidelity & Guaranty Co. v. Wyer (C.C.A.10) 60 F.(2d) 856, certiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 560.
Without having paid the judgment against him, Buffalo now sues on the policy. The company set up four separate defenses which, if we interpret them correctly, are: (1) That it has been adjudicated in the case of Wyer against the company that no liability existed on this policy of insurance; that Wyer stood in Buffalo's shoes in suing on the policy, and that Buffalo was a witness for Wyer on the trial. (2) That Buffalo breached the clause of the policy requiring him to co-operate in defense of the suit of Wyer against Buffalo, in that Buffalo had stated he was not in the car when the accident occurred; that the company had defended that suit under a reservation of liability; that the judgment in Wyer against Buffalo is an adjudication that Buffalo was in the car; hence his statement was false. (3) That Buffalo in fact breached the co-operation clause. This defense is couched in the identical language as the defense in the suit by Wyer against the company, plus the fact that Buffalo was so drunk at the trial of Wyer against Buffalo that he was sentenced to jail for contempt. (4) That plaintiff cannot recover, in any event, unless he established that the car was...
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