Henry C. Francis v. London Guarantee & Accident Co

• Decision Date: 05 October 1927
• Citation: 138 A. 780,100 Vt. 425
• Parties: HENRY C. FRANCIS v. LONDON GUARANTEE & ACCIDENT CO
• Court: Vermont Supreme Court

138 A. 780

100 Vt. 425

HENRY C. FRANCIS v. LONDON GUARANTEE & ACCIDENT CO

Supreme Court of Vermont

October 5, 1927

May Term, 1927.

APPEAL IN CHANCERY. Heard on pleadings and chancellor's findings of fact after the September Term, 1926, Rutland County Chase, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.

Decree affirmed and cause remanded.

Chase E. Novak for the defendant.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

POWERS

The defendant insured Nellie M. Kelley against liability for damage caused by the operation of her Paige automobile. The policy was available to any person rightfully operating the car with her consent. While it was being operated by her husband, Patrick Kelley rightfully and with her consent, it was in collision with the plaintiff's car. The plaintiff brought suit against Patrick Kelley for the damage resulting from this collision and obtained a judgment therein for the sum of $ 247.24. Execution for that sum was issued and returned nulla bona. Thereupon this suit in chancery was brought to charge the defendant with liability for the amount of that judgment.

The policy in question contains a provision that "the assured shall cooperate with the company, except in a pecuniary way, in the defense of claims and suits and in prosecuting appeals"; and the only defense herein made is based upon this provision, --it being the defendant's claim that Patrick Kelley falsified in his representations to it while it was investigating the plaintiff's claim and preparing to defend the original suit as required by the policy.

The facts herein were found by the chancellor, and the decree below was for the plaintiff. The defendant appealed. The findings are inadequate.

The chancellor merely says that "the allegations in the plaintiff's bill of complaint have been proven and are true." This is wholly insufficient, and ordinarily would cause us to remand the case for adequate findings. But in the circumstances of this case, we can make it suffice, since the only defense made is an affirmative one on which the defendant carried the burden of proof. Patterson's Admr. v. Modern Woodmen 89 Vt. 305, 317, 95 A. 692.

The chancellor further reports that "the evidence introduced by the defendant is true." This is not such a finding as the law requires. It was the duty of the chancellor to sift the evidence and state the facts (Raithel v. Hall, 99 Vt. 65, 70, 130 A. 749), and it is no part of the duty of this Court to perform that service. See Josselyn v. Ludlow, 44 Vt. 534, 538; Hooper, Trustee v. Kennedy, 100 Vt. 376, 138 A. 778. This statement, therefore, will be disregarded.

The chancellor then goes on to say that he fails to find that Patrick Kelley did not cooperate with the defendant as required by the policy. To this, and to the decree, the defendant excepted.

It is quite apparent that this failure to find concludes the defendant unless, upon the record, it must be said that, as matter of law, an affirmative finding in the defendant's favor was required by the evidence. The transcript of the evidence taken by the chancellor is referred to and made a part of the record and is before us for consideration. But no reference is made to the exhibits used at the trial, and these are not before us. We said in O'Boyle v. Parker-Young Co., 95 Vt. 58, 63, 112 A. 385, 387, that "Papers and documents, whatever their character, unless made a part of the record, cannot be considered, and should not be mingled with other papers that are properly before the court." This accords with the well-established rule. Sargeant v. Leland, 2 Vt. 277, 279; Thompson-Starrett Co. v. Ellis Granite Co., 86 Vt. 282, 292, 84 A. 1017; Vermont Marble Co. v. Eastman, 91 Vt. 425, 440, 101 A. 151; Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670.

The right of the defendant to show Kelley's lack of cooperation, unparticipated in by this plaintiff, as a defense to this suit is not called in question here, and we give that subject no attention.

To make a defense it was necessary for the company to show that Kelley failed to cooperate with it in such a way as to prejudice it. To establish this, the defendant, after showing what Kelley told its attorney regarding the accident and other facts, put in evidence the transcript of the testimony given by Kelley and R. S. Pike at the trial of the original case against Kelley. But this transcript is not made a part of the record and under the rule above referred to is not for consideration here. However, enough appears to enable us to pass upon the questions raised by the exception to the chancellor's failure to find. The defendant's counsel testified before the chancellor and from his testimony it appears...