Chronister v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 11 July 1960
• Docket Number: 6580,Nos. 6579,s. 6579
• Citation: 67 N.M. 170,353 P.2d 1059,1960 NMSC 67
• Parties: William Robert CHRONISTER, a minor by his next friend, Bill Chronister, and Bill Chronister, individually, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Garnishee, Appellee (two cases).
• Court: New Mexico Supreme Court

Page 1059

353 P.2d 1059

67 N.M. 170

William Robert CHRONISTER, a minor by his next friend, Bill

Chronister, and Bill Chronister, individually, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Garnishee,

Appellee (two cases).

Nos. 6579, 6580.

Supreme Court of New Mexico.

July 11, 1960.

J. Lee Cathey, Roswell, for appellants.

Brown & Brainerd, Roswell, for appellee.

CHAVEZ, Justice.

This is an appeal from the granting of two summary judgments in causes numbered 6579 and 6580, Chaves County. By stipulation, the appeals were consolidated.

The case involves a controversy over an automobile liability insurance policy. On July 25, 1957, plaintiffs, William Robert Chronister, a minor, by his next friend, Bill Chronister, and Bill Chronister, individually, plaintiffs-appellants, filed an amended complaint against Evelyn Mae Casper and J. E. Sparkman, defendants, asking damages for personal injuries suffered on June 28, 1957, by said minor child as a result of the operation of an automobile driven by the defendant, Evelyn Mae Casper. The complaint is in three causes of action, the first cause of action against defendant, Casper, alleges simple negligence in the operation of an automobile, resulting in injuries to said minor child and damages to his father for medical and hospital expenses. The second cause of action alleges that defendant, Sparkman, operated an ice cream truck upon the public streets and by means of a mechanical musical apparatus attracted said child upon the street and into the path of Casper's automobile, and alleges further that as a result of the negligence of defendant, Sparkman, said minor and his plaintiff-father were damaged. The third cause of action alleges that the concurring negligence of the defendants, Sparkman and Casper, was the direct and proximate cause of the personal injuries.

The record discloses that on October 18, 1957, plaintiffs' attorney notified Brown & Brainerd, attorneys, that unless an answer was filed in the case within ten days, plaintiffs would seek a judgment by default against defendant, Sparkman.

On October 26, 1957, attorneys Brown & Brainerd filed a notice of their withdrawal as attorneys for Sparkman.

On December 3, 1957, a default judgment was entered for plaintiffs and against Sparkman in the sum of $912.08.

The judgment, among other things, provided:

'It Is Further Ordered, Adjudged, and Decreed that any other damages to which the plaintiffs are entitled to have and recover against the defendant, J. E. Sparkman, shall be held in abeyance until trial of the issues between plaintiffs and the defendant, Evelyn Mae Casper.'

Upon said judgment a writ of garnishment was issued on December 3, 1957, against Sparkman and State Farm Mutual Automobile Insurance Company, garnishee. On January 13, 1958, Brown & Brainerd, attorneys, filed their entry of appearance on behalf of garnishee. On January 14, 1958, district judge Geo. T. Harris filed a recusal in said cause. On January 14, 1958, garnishee filed its answer denying liability.

On March 6, 1958, plaintiffs filed interrogatories to the garnishee and garnishee made answer thereto on April 23, 1958, stating: That on June 28, 1957, garnishee had in effect a contract of insurance wherein J. E. Sparkman was named as insured; that the policy period was from June 22, 1957, to December 22, 1957; that the policy limits as to liability, injury and property damage were $10,000 per person, $20,000 per accident, and $5,000 property damage; that garnishee's adjuster was notified that an accident had occurred in which plaintiff, William Robert Chronister, was injured on June 28, 1957; that the adjuster interviewed various witnesses to the accident and statements were taken from Evan E. Casper, Evelyn Mae Casper and Doil Wilson that Sparkman delivered a copy of the summons to garnishee's Roswell office; that garnishee employed attorneys Brown & Brainerd.

On November 26, 1958, plaintiffs' attorneys gave written notice to garnishee that at 9:00 a. m., December 16, 1958, in the district court room at the Lea County Courthouse, Lovington, New Mexico, plaintiffs would make application to the court for commission authorizing the taking of the deposition of defendant, Sparkman, on January 5, 1959.

On December 5, 1958, an affidavit of Robert H. Sprecher, assistant district attorney, fifth judicial district of New Mexico, was filed, setting out that on August 5, 1957, he filed a criminal complaint in justice of the peace court, precinct No. 1, Chaves County, New Mexico, against Sparkman, and that on October 2, 1957, he filed in the same justice court another criminal complaint against Sparkman. Affiant further stated that the police authorities of Chaves County were unable to apprehend Sparkman on either of the charges because they were unable to locate him, and the whereabouts of said Sparkman remained unknown from the time that he was charged until he was apprehended by the police authorities in California in late October or early November, 1957. Affiant further stated that said Sparkman refused to return voluntarily to the State of New Mexico and an extradition hearing was set in California for December 6, 1957, and that by agreement between Sparkman's attorneys in California and the district attorney in New Mexico, said Sparkman made full restitution on December 21, 1957, and the above charges against him were dismissed.

On November 29, 1958, garnishee filed a motion for summary judgment in cause No. 6579, alleging: That on June 28, 1957, garnishee had in force a policy of insurance whereby garnishee, subject to the terms and conditions set out in the policy, insured Sparkman against liability arising out of the ownership, maintenance or use of Sparkman's truck; that said policy provided:

'The insured shall cooperate with the company and upon its request, attend hearings and trials, assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits * * *.'

Garnishee further alleged in said motion that Sparkman was served with process on July 25, 1957; that thereafter Sparkman wholly failed to cooperate with the garnishee in the defense of the case; that he absented himself from the state without notice to garnishee; that garnishee was unable to present a defense to the action; that garnishee made diligent and continued efforts to locate Sparkman in order to secure his cooperation but was unable to do so; that Sparkman's failure to cooperate with garnishee terminated the liability of garnishee under said policy; that no genuine issue of material fact exists which would entitle plaintiffs to recover under the writ of garnishment.

On December 15, 1958, plaintiff filed its response to the motion for summary judgment, in effect denying the allegations that Sparkman had failed to cooperate with the garnishee and also denying that there was no genuine issue of material fact.

On March 25, 1959, summary judgment was granted by the trial court in cause No. 6579, and the court found: That garnishee was the insurer of Sparkman under the terms of its policy of insurance; that Sparkman left New Mexico after having been served with process but before the time for answer had expired; that Sparkman failed to notify garnishee of his whereabouts although he knew of the impending trial; that Sparkman wholly failed to cooperate with the garnishee as required by the policy; that there was no genuine issue of material fact upon which to hold the garnishee liable.

On January 31, 1959, a final judgment was entered in cause No. 6580, assessing damages against Sparkman and in favor of Bill Chronister as father and next friend of the minor child, William Robert Chronister, in the sum of $5,000, and damages for Bill Chronister, individually, against the defendant, Sparkman, in the sum of $1,387.96. A writ of garnishment was issued on this judgment on February 12, 1959, and on February 20, 1959, garnishee filed its answer denying liability.

On March 25, 1959, garnishee filed a motion for summary judgment in cause No. 6580, alleging the same matters alleged in the motion for summary judgment in cause No. 6579, except that garnishee also alleged that the matters raised by plaintiffs' garnishment of February 2, 1959, were res judicata. On April 24, 1959, the trial court granted summary judgment in cause No. 6580, making the same findings that were made by the trial court in the summary judgment in cause No. 6579, except that in the summary judgment in cause No. 6580 the trial court also found that all matters raised in plaintiffs' writ of garnishment of February 2, 1959, were res judicata.

The plaintiff, on April 7, 1959, filed a praecipe of the record and on April 20, 1959, an amended praecipe was filed. On April 25, 1959, garnishee filed a counterpraecipe requesting that the record also include the notice to take the deposition of Sparkman and the affidavit of Robert H. Sprecher.

Appellants raise the point that:

'Whether a judgment debtor failed to cooperate with the insurer-garnishee under the terms of an automobile liability insurance policy is a question of fact and should not have been determined by the trial court upon the garnishee's motion for summary judgment.'

No evidence was introduced in either cause and the summary judgments were based upon the pleadings and arguments of counsel.

Appellants argue under this point that the record does not sustain the findings of the trial court: (1) That Sparkman left New Mexico after having been served with process and before time for answer had expired; (2) that Sparkman failed to notify garnishee of his whereabouts although he knew of the impending trial; (3) that Sparkman wholly failed to cooperate with the garnishee; (4) that there was no issue of material fact; and (5) that the matters raised by plaintiffs' garnishment of February 2, 1959, were res judicata.

The record is silent as to how or in...