Employers Mut. Cas. Co. v. Ainsworth, 42998

• Decision Date: 25 May 1964
• Docket Number: No. 42998,42998
• Citation: 164 So.2d 412,249 Miss. 808
• Parties: EMPLOYERS MUTUAL CASUALTY COMPANY et al. v. H. K. AINSWORTH.
• Court: Mississippi Supreme Court

Page 412

164 So.2d 412

249 Miss. 808

EMPLOYERS MUTUAL CASUALTY COMPANY et al. v. H. K. AINSWORTH.

No. 42998.

Supreme Court of Mississippi.

May 25, 1964.

Davidson & Beach, Jackson, for appellants.

Melvin, Melvin & Melvin, Laurel, for appellee.

GILLESPIE, Justice.

This is an appeal from a judgment in a garnishment proceeding wherein the judgment creditor in an automobile accident case filed garnishment proceedings against the liability insurer of the judgment debtor. Issue was joined between the judgment creditor, H. K. Ainsworth, appellee herein, and Employers Mutual Casualty Company, appellant herein, on whether the cooperation clause in an automobile liability policy was violated. This issue was presented to the jury and the verdict was for the judgment creditor and the insurance company appealed to this Court.

Appellee obtained judgment for $6,000 against Mrs. J. W. (Agnes A.) McCraw, his daughter, in his suit in circuit court charging that his daughter negligently operated an automobile in which he was riding resulting in an accident and serious injuries to him. Appellee had a writ of garnishment served upon Employers Mutual Casualty Company, who had theretofore issued its automobile liability policy to J. W. McCraw, under which Mrs. J. W. (Agnes A.) McCraw, Craw was protected. Appellee contested the answer in which appellant charged that Mrs. J. W. McCraw failed to cooperate with the insurer.

The insurance company contends that the verdict was contrary to the overwhelming weight of the credible evidence; and that the trial court erred in rendering judgment against the insurance company in the sum of $6,000, or $1,000 in excess of the policy limits.

The policy obligated insurance company 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death resulting therefrom, hereafter called bodily injury, sustained by any person.' The policy also obligated the insurance company to '* * * defend any suit alleging such bodily injury or property damage, and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation or settlement of any claim it deems expedient.'

Under the terms of this policy Mrs. J. W. (Agnes A.) McCraw was insured and entitled to all the protection afforded the named insurer.

The policy contained a cooperation clause as follows: 'The insured shall cooperate with the company and, upon the company's request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses, and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.'

On November 15, 1960, while the policy was in effect, Mrs. M. W. McCraw left her home in Laurel to go to Oak Grove, Louisana, driving her husband's 1959 Vauxhall automobile described in the policy. Her father, appellee, accompanied her. When they reached a point on Highway No. 585, near Oak Grove, Louisiana, and as they approached a sharp right-hand curve in the two-lane blacktop road, a truck came around the curve from the opposite direction. Mrs. McCraw turned the automobile to the left, ran off the road and turned over. Appellee sustained serious injuries.

Thereafter H. K. Ainsworth filed suit in the Circuit Court of Jones County against Mrs. J. W. McCraw, seeking damages for the injuries sustained by him in the aforesaid accident.

Mr. T. E. Davidson of Jackson, Mississippi, an attorney and state representative of the insurance company, employed Mr. David C. Welch, an attorney of Laurel, Mississippi, to assist in defending the suit. On April 29, 1961, Mr. Davidson met Mr. and Mrs. McCraw in the law offices of Mr. Welch for the purpose of discussing the case filed against Mrs. McCraw by appellee. On the same day the answer of Mrs. McCraw was filed by the said attorneys. The case went to trial in March 1962.

The attorney for appellee, the plaintiff, called Mrs. McCraw as an adverse witness and she testified that she was driving 45 miles an hour, and volunteered the statement that she was going too fast to approach the curve; that she was driving in the center of the road, which would put her partly in the path of the oncoming truck; that she lost control of the car; stepped on the accelerator instead of the brake; and went down the dump and turned over two or three times. As will be hereafter shown, this testimony was in direct conflict with her purported written statement. When this occurred, Attorneys Davidson and Welch requested the court's permission to examine Mrs. McCraw in the absence of the jury. This request was granted and Mr. Welch questioned her about the purported written statement given on November 23, 1960, and she denied that she had signed any of the pages except the first two. She admitted signing her father's statement as a witness but denied knowing its contents. Mrs. McCraw was questioned about the meeting in the office of Mr. Welch on April 29, 1961, and she testified that she told Mr. Welch the statement attributed to her was incorrect.

Mr. Welch advised the court that 'we are taken by surprise, if your honor, please.' The court then suggested there was a conflict of interest between Mrs. McCraw and Messrs. Davidson and Welch. He stated that he assumed said attorneys would withdraw at this point, and Mr. Welch said, 'That is exactly correct, we wish to withdraw for failure on the part of the witness to cooperate with us and giving us inconsistent statements.' The trial judge then said to the witness: 'Mrs. McCraw, it is apparent to the court that as between you and you attorneys, there is a definite conflict of interest, and they cannot represent you in the cause because their attitude shows they can't do it. Under these circumstances, it would be unethical for them to proceed any further in the case, and it would be my duty not to let them because it is obvious that this conflict of interests exists. You are entitled to have counsel in the matter and the case is started, I don't know whether you want to get counsel or not, or whether you want to proceed without counsel.'

Mrs. McCraw said she knew nothing about court and did not know what he was talking about when he said 'counsel,' or 'to proceed without counsel.' Whereupon the judge said: 'The court would be required to give a directed verdict against you because of the fact that your testimony shows negligence in driving the automobile. All I can advise you is that it is the duty of the court to release these attorneys, or say that they do not represent you, because of the obvious conflict of interest. I don't know how else to tell you than I have told you. If you want time to get an attorney you may do so.'

Mrs. McCraw did not request a continuance for the purpose of obtaining an attorney and the case proceeded to trial, resulting in a judgment for $6,000.

Thereafter the garnishment proceedings involved on this appeal were instituted. The insurance company answered that it was not indebted. The answer was contested by appellee and in response thereto the insurance company charged that Mrs. McCraw failed to comply with the terms of the cooperation clause of the policy.

The insurance company introduced Corporal Virgil Johns, a trouper with the Louisiana State Police, who testified he investigated the accident involved, and that Mrs. McCraw told him she was traveling north on the highway when she came to a sharp curve where she met a truck traveling south on the inside of a curve, which was on her side of the road; to prevent a head-on collision she pulled to the left to miss the truck, lost control of the vehicle and ran into the lefthand ditch. The court refused to allow this testimony to be presented to the jury although it was tendered by the insurance company and developed in the absence of the jury. It will be noted that this version of the accident is in accord with the purported statement of Mrs. McCraw.

James H. Guyes, employee of Crawford Adjustment Agency, testified that he contacted Mrs. McCraw for the purpose of determining the facts of the accident in the course of an investigation for the insurance company, and she told him how the accident occurred and he reduced her oral statement to writing which was signed by her on each page. It consisted of five pages, the last being a diagram. The statement was also witnessed by Mrs. McCraw's son, J. D. McCraw. The diagram attached to the statement, which is in ink, purports to show the highway where the accident occurred, and shows Mrs. McCraw's vehicle at a point before it reached the curve, opposite which is an arrow with words, 'about 30 m. p. h.' It shows Mrs. McCraw's vehicle near the curve on her righthand side of the road two car lengths from the other vehicle meeting her on its lefthand side of the road directly in front of the car driven by Mrs. McCraw. It also shows a line indicating that Mrs. McCraw turned her vehicle to the left out of the path of the oncoming truck so that her vehicle left the highway. Mr. Guyse also testified that Mrs. McCraw put her initials, 'A.A.Mc' on one page of the statement to indicate an interlineation, and this was placed in the written statement at the suggestion of Mrs. McCraw so that it would be complete.

The first four pages of Mrs. McCraw's purported statement is in ink and contains considerable details about her trip to Louisiana leading up to the accident and what happened thereafter. The first page (which she and her son admitted signing) contains the following:

'I was travelling...