MacClure v. Accident & Cas. Ins. Co. of Winterthur, Switzerland
| Decision Date | 13 October 1948 |
| Docket Number | 92 |
| Parties | MacCLURE v. ACCIDENT & CASUALTY INS. CO. OF WINTERTHUR, SWITZERLAND. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
This action to recover damages for the personal injury and death of plaintiff's intestate, was brought against the defendant Company on an accident or casualty insurance policy issued to one Dewey Delph with respect to injury or damage caused in the use of a LaSalle sedan owned by him. Delph was the proprietor of a carnival, or show known as the 'Blue Ribbon Shows,' traveling in North Carolina, Virginia, Tennessee, and other southern states with headquarters in Atlanta, Georgia; and was, at the time of the accident giving rise to the suit, showing in Asheville, North Carolina. At the time of the injury the offending automobile was being driven on the streets of Asheville by William F. Spence, a member of the show personnel, with the permission of the owner, Delph. The deceased, a small child, was fatally injured in a collision with the car so driven, on the 17th day of October 1945, and died a few hours thereafter.
Delph notified defendant's Atlanta agent of the accident October 19 following, and in turn the latter notified defendant's district claim representative, Barnette. C. V. DeVault, claim agent at Asheville, was authorized to make investigation and take the matter in charge. Suit was begun October 1, 1946, and service was made on the Commissioner of Motor Vehicles under G. S. s 1-105, October 14; and M. D. Kauffman, as purported agent in behalf of Spence, receipted registered notice thereof at Nashville, Georgia, October 24. The defendant employed Messrs. Smathers & Meekins of Asheville in behalf of Delph and Spence, to defend the action against them. Through these and other agencies the present defendant made continuous efforts to locate either or both of the defendants by letters written to each of them and by inquiries of persons thought likely to know their whereabouts or to be acquainted with the itinerary of the show. These efforts were unsuccessful as far as Spence was concerned until a registered letter mailed to him at his home, Wytheville, Virginia, and there receipted for him by a purported agent, reached him April 7, 1947, at Brunswick, Georgia.
Meantime numerous letters had been written from time to time in which the necessity for filing answer to the suit was stressed and the failure to cooperate and its consequences both upon the suit and upon the attitude of the Company toward the suggested failure to cooperate according to the terms of the policy. Many of these letters were returned undelivered. Meantime, counsel for the plaintiff in that suit, Messrs. Williams & Williams, at the request of the defense attorneys, agreed to an extension of time to file answer; and finally, at the request of defense counsel, consented that the latter might file an unverified answer, and that the time should be extended until April 7. Such an answer had been prepared by defense counsel some time in March.
On April 7, 1947, Messrs. Smathers & Meekins, not having heard from Spence, filed a motion to be permitted to withdraw as counsel, which motion was supported by an affidavit reciting in detail the history of the case, the numerous attempts made to locate the client, reciting the provisions in the policy relative to cooperation as a condition precedent to its recovery, and requesting the court to find the facts. The Insurance Company had suggested withdrawal by letter of March 25,--'and then it shows on the Court Record that we have done everything within our power to locate Spence and have him verify his answer and cooperate with his insurer.'
Permission at that time was declined and was not granted until May 12, following, at which time Judge Gwyn allowed the motion, making the requested findings of fact. This entire proceeding, including the findings of Judge Gwyn, was offered in evidence by the defendant and admitted over plaintiff's objection.
In response to the letter received by Spence at Brunswick, Georgia, April 7, he telegraphed Messrs. Smathers & Meekins on April 8 that he had received the letter the night before too late to answer by Western Union and could not communicate by telephone because of the strike, and asked to know what they wanted him to do. To this counsel replied by wire, stating that they had filed a motion to withdraw from the case and would take no further action unless assured that he would keep them advised every two weeks where he could be reached the following two weeks and that he would come to the trial; that if he agreed to do that he must 'sign and return the answer as explained in our letter of March 7, or, if not available, will prepare and forward another, provided you act at once and will cooperate from here on. ' The signed, verified answer was received by defense counsel on April 16. The record does not disclose that counsel did anything in the matter after locating Spence except press the motion to withdraw which, as stated above, was granted on May 12.
Meanwhile, judgment by default and inquiry was signed April 11, and upon the inquiry of damages judgment was rendered against Spence for $11,000. Execution was issued on this judgment and returned nulla bona; the judgment, execution and return were manifested in evidence.
The policy contains the following provisions more immediately pertinent to this review and discussed in the opinion:
'11. Action Against Company. Coverages A and B. 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 nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the Claimant and the Company.'
There were numerous exceptions on the part of the plaintiff as to the exclusion of the evidence offered by him and to the admission of evidence offered by the defendant. They are omitted except as noted in the opinion.
At the conclusion of the plaintiff's evidence and again at the conclusion of all the evidence, the defendant demurred to the evidence and moved for judgment as of nonsuit, which was allowed, and the plaintiff appealed.
Williams & Williams, of Asheville, for plaintiff-appellant.
Harkins, Van Winkle & Walton, of Asheville, for defendant-appellee.
Preliminarily we should observe that under the definition of 'insured' in the above quoted clause of the policy, Spence, operator of the LaSalle automobile by permission of the owner, is as much entitled to the benefit of the insurance as the 'named insured,' Delph, and stands in the same relation to the plaintiff in the procedure for ultimate recovery.
The defense that the insurer had not been notified of the accident or of the in stitution of the suit against him is not tenable. Delph had promptly notified agents of the Company of the occurrence and they, together with claim adjuster DeVault, were immediately and actively employed in the investigation of the accident soon after it occurred. The record shows that the defendant was aware of the institution of the suit and immediately employed counsel to defend both Delph and Spence. In that capacity the counsel designated knew of the institution of the suit and were so conversant with the facts and with the plaintiff's claims, presumably as alleged in the complaint, that in an early letter addressed to Spence they advised him that he had a good defense, which defense they formulated in an answer
The case is distinguishable on principle from Peeler v. United States Casualty Co., 197 N.C. 286, at page 287, 148 S.E. 261, cited by the appellee, as may be seen from the statement of facts in that case; 'It is admitted that the defendant never had written notice of the collision, and knew nothing about it, until the trial between the plaintiff and Graham had begun. ' (Graham was the insured.)
The plaintiff does not contest the only...
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