THOMAS
Justice.
The
suit was to enforce suretyship founded on judgment for
damages. The trial was had on count B.
The
judgment against the Gulf Coast Motor Express, Inc., and C.C.
Couvillon was had in Mississippi for $8,000, which was
reduced in the amount of $3,000 by remittitur of damages;
this sum not being paid, suit was brought in the circuit
court of Mobile
county, Ala., against surety on bond as a common carrier by
motor vehicle under permit from this state. Gen.Acts
Ala.1932, Ex.Sess., pp. 178, 180, 185.
The
plaintiff as a witness in his own behalf, was asked by
defendant: "Where were you when you were hurt?"
Plaintiff objected to the question, stating, "I do not
see what that has got to do with the judgment of the court
over there. The judgment of the court over there is
conclusive of the matter, and we cannot try the case
over." The court sustained said objection and the
defendant duly reserved an exception to the ruling. In this
ruling of the court there was no error. Employers Ins.
Co. v. Brock, 233 Ala. 551, 172 So. 671.
The
judicial proceedings of said cause in Mississippi, certified
to under the act of Congress (28 U.S.C.A. § 687), were duly
introduced in evidence over the objection and exception of
defendant.
The
questions of (1) negligence and liability therefor, (2)
damages and the amount thereof, were settled by the first
trial, which was founded on the same facts here presented by
the defendant assured.
The
question of fact is presented by the pleadings of: (1) Nul
tiel record in this action for debt on judgment indemnified;
(2) the coverage of the policy; (3) noncooperation or the
waiver thereof after knowledge. These matters are presented
in the suit on the judgment against the surety, Employers
Ins. Co. of Ala. v. Brock, supra, which may be, and were,
presented under the general issue.
The
contract of insurance contains, among others, the following
provisions:
"B.
The assured shall give immediate notice with full
particulars, in form prescribed by the Company, of any
accident covered by this policy. *** The Company shall have
the right to settle any claim or suit at its own cost at
any time.
"C.
The assured shall not, unless at his own expense, pay or
settle any claim, incur any expense or voluntarily assume
any liability in respect to any accident covered by this
policy ***."
The
insured must prove notice as required by the policy. This
notice was given properly in evidence. Clements v.
Preferred Acc. Ins. Co. (C.C.A.) 41 F. (2d) 470, 76
A.L.R. 17; St. Louis Arch. Iron Co. v. New Amsterdam Cas.
Co. (C.C.A.) 40 F. (2d) 344; United States F. & G.
Co. v. Yeates, 217 Ala. 150, 115 So. 174.
The
contract of insurance also contains the following provisions:
"In
consideration of the premium and of the Declarations
forming a part hereof, Does Hereby Agree To insure the
assured against the risks assumed hereunder, while within
the limits of the United States of America (exclusive of
Alaska, the Hawaiian, Philippine and Virgin Islands and
Porto Rico) and Canada subject to the agreements herein set
forth."
"I.
Against loss and/or expense arising or resulting from
claims upon the assured for damages by reason of his legal
liability on account of bodily injuries and/or death
accidentally suffered, or alleged to have been suffered, by
any person or persons not hereinafter excepted, due to the
ownership, maintenance, and/or use (including the carrying
of goods thereon and the loading and unloading thereof if
insured under this policy as a commercial automobile) of
the automobile described herein, provided such accidents or
alleged accidents occur while this policy is in force. ***
"II.
Against loss and/or expense arising or resulting from
claims upon the assured for damages by reason of his legal
liability on account of damages to or destruction of
property of every description (except, however, property of
the assured or property in the custody of the assured, or
property which is rented or leased by the assured or
property carried in or upon any automobile of the assured)
caused, or alleged to have been caused, by an accident due
to the ownership, maintenance and/or use (including the
carrying of goods thereon and the loading and unloading
thereof if insured under this policy as a commercial
automobile) of the automobile described herein, including
the resultant loss of use of such property damaged or
destroyed, provided such damage or destruction occurs while
this policy is in force."
The
contract of insurance also contains a provision "to
defend" the assured against the terms of financial
responsibility laws, as follows:
"V.
To construe the insurance granted by this policy to conform
to the law of any State of the United States or of any
province of the Dominion of Canada, in effect while this
policy is in force, by which such insurance is required as
proof of Financial responsibility prerequisite to the
granting or continuance of authority *** to operate a motor
vehicle on the highways of
such state or province. This paragraph shall apply to the
insured automobile while being operated in such state or
province and shall be effective only to the extent of the
coverage and the limits of liability required by such law,
but in no event in excess of the limits of liability stated
in this policy."
The
exceptions from coverage are contained in paragraph E of the
policy of insurance, and among them are: "*** (f) being
used for rental or livery purposes or for the carrying of
passengers for a consideration, actual or implied." The
policy further states that it does not cover any accident
while the automobiles are "being used elsewhere than
within the confines of the United States and Canada."
In the
recent decision in United States Fidelity & Guaranty Co.
v. Hearn, 233 Ala. 31, 170 So. 59, the last-quoted
provisions, and that of the liability of surety to defend the
pending suits, were defined and applied.
The
application for the insurance made by Gulf Coast Express,
Inc., in items 6, 7, and 9, states the domicile or storage
places of the vehicle in question; that such automobile will
be principally used in the city or town (and its vicinity) of
New Orleans, La., to Baton Rouge, La., New Orleans, La., to
Mobile, Ala., and for the use stipulated. The extent of
limitation in the amount of liability is stated in items 11
and 12. The judgment final with remittitur was within that
limit of the amount of liability under the policy.
One of
the indorsements on the policy, which is the subject of this
suit is as follows: "Endorsement attached to policy
dated 7:06 P.M. July 7, 1934, to cover Item 20, C.C.
Couvillion and/or Gulf Coast Motor Express is amended to
become effective as of 7:06 P.M. June 7, 1934, and the motor
number of the truck covered is amended to be 4099289.
Endorsement attached to policy dated 7:06 P.M. July 7, 1934,
to eliminate Item 17-C.C. Couvillon is also amended to (be)
effective June 7th, instead of July 7th."
The
car, by its proper number, was indicated in the report of the
accident made by assured.
Another
indorsement on the policy reads as follows:
"Public
Liability and Property Damage for Motor Carriers Operating
Under Alabama Permits. The policy to which this endorsement
is attached is written in pursuance of, and is to be
construed in accordance with, an Act of the Legislature of
Alabama approved October 28, 1932 (H.B. 113), and the
reasonable and legal rules and regulations of the Alabama
Public Service Commission adopted thereunder and applicable
hereto. The policy is to be filed with the State in
accordance with the statute.
"In
consideration of the premium stated in the policy to which
this endorsement is attached, the insurer hereby insures the
motor vehicles described in the policy and any motor vehicle
substituted therefor, but not additional motor vehicles, and
agrees to pay within the limits of the policy or any
endorsement attached thereto any final judgment for personal
injuries, including death resulting therefrom suffered by any
persons (other than the insured or his employees, passengers
of, or the shippers of freight by such carrier) and/or damage
to property (but excluding property of the assured or
property designated as 'cargo' received for shipment
or in transit) for which the carrier may be liable by reason
of the operation of any motor vehicle subject to the
provisions of said Act and operated by the assured pursuant
to a permit issued to the assured under said Act, and further
agrees that upon its failure to pay any such final judgment
said judgment creditor may maintain an action in any court of
competent jurisdiction to compel such payment.
"No
condition, provision, stipulation or limitation, contained in
the policy or any other endorsement thereon, nor the
violation of any of the same by the insured shall affect in
any way the right of any person (covered under this policy)
injured in person or property to recover damages recoverable
under this policy, or relieve the insurer from the liability
provided for in this indorsement, or from the payment to such
person of any such judgment, to the extent and in the amounts
set forth in the policy.
"This
policy shall not be cancelled or otherwise terminated at any
time...
