Cockrell v. Farmers Mut. Auto. Ins. Co., s. 24763
| Decision Date | 01 April 1968 |
| Docket Number | 24759,Nos. 24763,s. 24763 |
| Citation | 427 S.W.2d 303 |
| Parties | Frances S. COCKRELL, Respondent-Appellant, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a mutual corporation, Appellant-Respondent. |
| Court | Missouri Court of Appeals |
Thaine Q. Blumer, Kansas City, for respondent-appellant; Blumer, Wright, Bittiker & Rocha, Kansas City, of counsel.
E. E. Thompson, Thomas A. Sweeny, Kansas City, for appellant-respondent; Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
Frances S. Cockrell, plaintiff, sued defendant insurance company seeking reimbursement for the sum of $3,750.00 as attorney fees for defending three personal injury damage suits brought against her, $183.60 for incidental expenses incurred in her defense, and for the sum of $750.00 for which amount a judgment was rendered against her in compromise of these suits. Each party moved for summary judgment against the other. Defendant's motion was denied and plaintiff's motion was sustained. From a judgment for plaintiff allowing her $1,875.00 as a reasonable sum for her attorney fees, $183.60 for expenses, and $750.00 which she agreed to pay in final settlement of the three claims, a total of $2,808.60, both parties appeal. Plaintiff contends that that part of the judgment allowed her as attorney fees is contrary to and against all of the evidence. We will first dispose of defendant's appeal.
This lawsuit grew out of a collision between an automobile being operated by plaintiff, and one being operated by a Mr. Fifield. The collision occurred in Kansas City, Missouri, August 19, 1958. Plaintiff's liability to others for damages growing out of personal injuries while operating her automobile was insured by defendant. The policy was in full force at the time this collision occurred.
Plaintiff was operating her automobile when the collision occurred. Riding as her guests were Anna Cockrell, plaintiff's sister-in-law, and Mr. Hornbuckle, a relative and friend of the Cockrells. Plaintiff immediately verbally notified defendant and later made a written report to it. Its agents made an investigation of the facts and circumstances. Plaintiff was represented in police court by attorney Gottschall and the traffic violation charges there pending were dismissed.
Thereafter, Anna Cockrell and Hornbuckle claimed personal injuries and damages growing out of the collision, and Frank M. Cockrell, husband of Anna, claimed damages for loss of services of his wife. These parties, on June 29, 1960, filed suit against plaintiff and Fifield. They were represented by Mr. Gottschall. On July 19, 1960, while in Kansas City, plaintiff learned that a deputy sheriff had been looking for her and when she went to the office of the sheriff of Jackson County, she was served with process in these cases. Plaintiff was a resident of Benton County, Missouri, as were Anna and Frank M. Cockrell. Neither she nor anyone in her behalf notified defendant in any manner of the filing or of the pendency of these suits until she forwarded the summonses and petitions to defendant's agent, on September 21, 1961, after being requested to do so by the attorney representing Hornbuckle and the Cockrells.
Plaintiff retained a Mr. Sharp to represent her in an action for damages which she filed against Mr. Fifield. Mr. Gottschall recommended Mr. Sharp to plaintiff. On June 6, 1961, she gave her deposition in that case. She gave no notice to defendant that she was going to give her deposition. She testified fully as to the facts and circumstances surrounding the collision between her automobile and that of Mr. Fifield. After she was advised by defendant that it would not defend her in the damage suit litigation, she employed Sharp to represent her in those cases. Defendant Fifield's deposition, in the case filed against him by plaintiff, was taken on September 8, 1961. Plaintiff did not notify defendant that the deposition was to be taken.
In that portion of the policy denominated 'Conditions', there appears the following:
'3. NOTICE.
'* * *. If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.'
'No action shall lie against the company unless, as a condition precedent thereto the insured shall have fully complied with all the terms of this policy. * * * '
Immediately upon receipt of the summonses in the suits here involved, defendant returned them to plaintiff and refused to defend because of her claimed failure to compaly with the above mentioned conditions of the policy.
Each party submitted this case to the trial court on a motion for summary judgment. Plaintiff's motion for summary judgment recited certain undisputed facts including the fact that these three cases had lain dormant and no action was taken therein until after the insurance company refused to defend, and argued from such facts that there was no prejudice to the insurer from the delay in forwarding the suit papers to the company, and, therefore, such delay was not a defense and plaintiff was entitled to a judgment as a matter of law because of such lack of prejudice. Defendant's motion for summary judgment recited no facts. It merely stated 'there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law.' Attached to this motion was a copy of the insurance policy and an affidavit of the attorney for defendant which stated that it was his practice when an insured was going to give his deposition in other litigation concerning matters covered by the policy, to review the file with the insured and to be present at the taking of such deposition; that his right to be present had never been questioned by other lawyers, and that this was the practice of other lawyers in the area. From this motion and affidavit, we can only conclude that the issue actually submitted to the trial court was a claim of prejudice.
Thus, the sole issue presented to the trial court was the fact issue of prejudice or no prejudice. The facts upon which the court was asked to base its conclusion were not disputed but the conclusion which the court was asked to draw was a conclusion of fact, not a conclusion of law, unless the facts so preponderated on one side or the other that reasonable minds could not differ on the issue.
When the case was briefed in this court, the defendant, for the first time, contended it was entitled to judgment whether or not there was any showing of prejudice to the insurance company from the delay in forwarding in suit papers. No mention of this centention is found in the record until the company's brief was filed in this court. It is possible that this argument was presented to the trial court by oral argument or brief in support of the motion for summary judgment but such does not appear from the record and we have no basis for so concluding other than pure speculation.
In support of its contention that it is entitled to judgment whether or not prejudice is found, the defendant insurance company relies primarily on the case of Northwestern Mutual Insurance Company v. Independence Mutual Insurance Company, Mo.App., 319 S.W.2d 898, decided by the St. Louis Court of Appeals in 1959. In that case Northwestern insured McKinnon and Independence insured Politte. The two had a collision driving their respective automobiles. McKinnon made a claim for personal injuries which was settled by Independence as Politte's insurer. McKinnon made no claim for property damage against Politte, rather he submitted his property damage claim to his own insurance company, i.e., Northwestern. Northwestern paid the property damage claim to McKinnon and then as subrogee asserted its claim against Politte. It eventually filed suit on this property damage claim. Polite not only failed to forward the suit papers to his insurance company but positively refused to do so although many times requested, both by letter and telephone, to forward the papers to Independence. When it appeared that Politte was not going to forward the papers, the attorney for Northwestern sent a copy of the petition to the attorney for Independence. Independence did nothing in the suit and Northwestern took a default judgment against Politte and then garnished Independence. Independence defended the garnishment proceeding on the basis of its insured's failure to forward the suit papers and his failure to cooperate. There are three issues considered by the opinion in the Northwestern case: (1) The absolute refusal of Politte to forward the suit papers, (2) the furnishing of suit papers by Northwestern approximately two months after service on Politte, and (3) the failure of Politte to cooperate. Defendant, in the case at bar, relies upon what was said by the St. Louis Court of Appeals in the Northwestern case concerning issue No. 1. Defendant's argument in this connection assumes that the actions of Frances Cockrell in the case at bar constitute a breach of this condition of the insurance policy. It is to be noted that in the Northwestern case there was an absolute failure to forward the papers by Politte.
As to this absolute refusal to forward the suit papers, the Northwestern opinion cites only two Missouri cases, Nevil v. Wahl, 228 Mo.App. 49, 65 S.W.2d 123, and Donlon v. American Motorists Insurance Company, Mo.App., 147 S.W.2d 176. In Donlon, the insurance company had no knowledge of the suit until after a default judgment had been rendered; it was too late to get it set aside; plaintiff was a guest in defendant's car when the accident happened in Illinois and the petition did not state a cause of action under the Illinois guest statute. In Nevil, the papers were not forwarded until after a default judgment was entered. When the insurance company wanted to file a motion to set aside the default and defend at...
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