Collins' Exors. v. Standard Accident Ins. Co.

• Decision Date: 05 May 1916
• Citation: 170 Ky. 27
• Parties: Collins' Executors v. Standard Accident Insurance Company.
• Court: Kentucky Court of Appeals

170 Ky. 27

Collins' Executors v. Standard Accident Insurance Company.

Court of Appeals of Kentucky.

Decided May 5, 1916.

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

BENNETT H. YOUNG for appellants.

O'NEAL & O'NEAL for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

This is an appeal from a judgment of the Jefferson circuit court, common pleas branch, first division, entered upon a verdict returned for appellee in an action brought against it by Mrs. Ruth S. Collins upon an accident insurance or indemnity policy she obtained of the latter May 2, 1911, whereby, in consideration of the required premium she then paid, it agreed, subject to certain conditions set forth in the policy, to indemnify her against any loss, not exceeding $5,000.00, that might be imposed upon her by law and paid by her, by way of damages, on account of bodily injuries suffered by any person by reason of her use and operation of a certain automobile owned by her and described in the policy.

On February 12, 1912, and during the life of the policy mentioned, Mrs. Collins while riding in the automobile accompanied by her sister, Miss Sallie Sevier, for the accommodation of the latter caused the chauffeur operating it to stop the machine in front of the public library on York street between Third and Fourth streets in the city of Louisville. After Miss Sevier had accomplished the object for which the automobile was stopped, it was at her command or that of Mrs. Collins again put in motion by the chauffeur. It skidded or by other accidental means so suddenly changed its course as to strike a post at the edge of the pavement. The shock of the collision caused Miss Sevier, who was sitting on the front seat of the machine, to fall therefrom to the ground, thereby causing her to receive, as claimed, certain bodily injuries, to recover for which she thereafter sued Mrs. Collins and obtained against her a verdict and judgment for $730.00 damages, with interest from May 26, 1913, and costs of the action, amounting to $29.40.

Claiming to have paid this judgment to Sallie Sevier, Mrs. Collins by this action on the policy of indemnity received by her of appellee, sought to recover it of the latter, its resistance of the recovery resulting, as already stated, in the verdict and judgment in its favor. After the motion of Mrs. Collins for a new trial was overruled and before the filing of the bill of exceptions, she died in Jefferson county, testate, and by an agreed order entered of record the cause was revived in the names of the Fidelity & Columbia Trust Company, executor, and Sallie Sevier, executrix of her will, who, in their fiduciary capacity, are now prosecuting this appeal.

Clause "F" of the policy provides:

"The assured upon the occurrence of an accident shall give immediate written notice thereof with the fullest information obtainable to the company at its home office, Detroit, Michigan, or to its duly authorized agent. He shall give like notice with full particulars of any claim made on account of such accident, and if thereafter any suit, even if groundless, be brought against the assured to recover damages on account of such injuries as are covered by this policy, he shall immediately forward to the company every summons or other process served on him, and the company will, at its own expense, defend against such suit in his name and on his behalf, or settle the same."

Clause "G" provides:

"The assured shall not voluntarily assume any liability nor settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation for settlement or legal proceeding without the consent of the company previously given in writing; but he may provide, at the company's expense, such immediate surgical relief as is imperative at the time of the accident. The assured, when requested by the company, shall aid in effecting settlements, securing evidence, the attendance of witnesses, and in prosecuting appeals."

Clause "J" provides:

"No action shall lie against the company to recover for any loss under this policy unless it shall be brought by the assured for loss actually sustained and paid in money by him in satisfaction of a judgment after trial of this issue; nor unless such action is brought within ninety days after final judgment against him has been satisfied."

The legal effect to be given the foregoing provisions of the policy is fully set forth in Fidelity & Casualty Co. of N. Y. v. Martin, 163 Ky. 12. Appellee's answer admits the issual of the policy to Mrs. Ruth S. Collins, but denies its liability thereon for the judgment recovered against her by Sallie Sevier, because it, as alleged, was procured by fraud and collusion between Mrs. Collins and Miss...