Marcum v. State Auto. Mut. Ins. Co.
| Decision Date | 06 June 1950 |
| Docket Number | No. 10195,10195 |
| Citation | 134 W.Va. 144,59 S.E.2d 433 |
| Court | West Virginia Supreme Court |
| Parties | MARCUM, v. STATE AUTOMOBILE MUT. INS. CO. |
Syllabus by the Court
1. A provision in an automobile indemnity policy requiring the insured to co-operate with the insurer in resisting claims and in the conduct of suits is a material condition of the policy designed for the prevention of fraud against the insurer. To avoid liability because of a breach of such condition, the insurer must establish some act on the part of the insured which prejudiced or was calculated to prejudice the insurer.
2. An insured, within the terms of an automobile indemnity policy requiring the insured to cooperate with the insurer in resisting claims and in the conduct of suit, who goes from the state wherein he resides into another state where a cause of action against him arose, for the purpose of aiding officers in the service of process commencing the action, where jurisdiction over the insured could have been had by substituted service, does not fail to cooperate so as to discharge the insurer from liability.
J. Floyd Harrison, Wayne, Kenneth E. Hines, Charleston, for plaintiff in error.
Fitzpatrick, Strickling, Marshall & Huddleston, Huntington, Edmund A. Marshall Huntington, O. Jennings Rife, Jr., Huntington, for defendant in error.
LOVINS, President.
In an action in assumpsit instituted in the Circuit Court of Wayne County by Sarah Marcum, plaintiff against State Automobile Mutual Insurance Company, a corporation, defendant, after all the evidence and had been introduced, the trial court, on motion of defendant, directed a verdict for defendant; overruled plaintiff's motion to strike defendant's evidence; overruled a motion to enter judgment for plaintiff, notwithstanding the verdict; overruled a motion to set aside the verdict; and entered judgment for defendant. On petition of plaintiff, this Court granted a writ of error.
The facts disclosed by this record are that defendant issued a policy of automobile insurance to Chester Warnock against liability for bodily injury in the amount of ten thousand dollars for each person. The policy which was issued to Warnock defined the work 'insured' as follows: 'The unqualified word 'insured' whenever used in coverages A and B and in other parts of the policy, when applicable to such coverages, including the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the use of the automobile is with the permission of the named insured.'
The insurance policy covered a 1936 Graham automobile, kept by Warnock in a garage in the City of Ashland, Kentucky, said Warnock being a taxi driver residing in that city. Warnock and Oliver Chadwick, on or about the 24th day of November, 1945, were attempting to negotiate an exchange of said automobile for one owned by Chadwick. In furtherance of such negotiations, Warnock authorized Chadwick to take the Graham automobile and drive it. Chadwick, about nine o'clock of that day, took charge of the automobile and drove it to various places in the States of Kentucky, Ohio and West Virginia. About 11:30 p.m. of the same day, Chadwick, while driving Warnock's automobile, struck and injured several pedestrians, including Sarah Marcum, and killed one or more other persons. The accident occurred in Wayne County, West Virginia. Chadwick then proceeded to Ashland, Kentucky, where he went to the home of Warnock and informed him of the accident about 1:30 in the morning of November 25, 1945, requesting Warnock to claim that the automobile had been stolen. Shortly after giving information of the accident to Warnock, Chadwick and Warnock were arrested, and taken to the jail in Wayne County, West Virginia. During the course of the criminal actions against Chadwick and Warnock, they were served with process commencing an action at law against them for the injuries inflicted upon Sarah Marcum, plaintiff herein.
Upon motion of Warnock and Chadwick the service of the summons commencing that action was quashed and the action dismissed. The record discloses that counsel, representing them at the direction of the insurance company, advised them after the dismissal of the first action that, if Chadwick and Warnock would not return from Kentucky to West Virginia, which course of action counsel deemed advisable, it would be necessary for the plaintiff to go to the State of Kentucky for the purpose of commencing an action. Chadwick was tried, convicted and sentenced on a charge of involuntary manslaughter, but afterwards was admitted to probation.
It seems that Chadwick, while on probation, was employed by his mother in the business of operating a delivery service. In the course of the operation of that business, Chadwick sent a truck and driver from Ashland, Kentucky, to Huntington, West Virginia, for the purpose of returning certain materials from the latter city. On the return trip from Huntington the truck, which was operated by one Fannin, simulated a breakdown at or near the home of the Sheriff of Wayne County. Fannin thereupon called Chadwick, who procured the services of Warnock as a texi driver, who drove him to the point where the truck was located in Wayne County, and while there Warnock and Chadwick were served with process commencing a second action against them for the recovery of damages on account of the injury to plaintiff, Sarah Marcum. Although it is denied by Chadwick, the testimony of Fannin and the sheriff is clear that, in fact, the truck did not break down, and Chadwick, having forewarned the Sheriff of Wayne County of his intentions, took that method to secure the presence of Warnock in Wayne County and to submit himself to service of process in the action wherein the judgment was rendered on which this action is predicated. This record is devoid of evidence indicating that Sarah Marcum had knowledge of or took any part in the actions whereby service of process was obtained upon Warnock and Chadwick.
The record is not clear as to the disposition of the second action with respect to Warnock, but it suffices to say that no judgment resulted against Warnock from that action. However, a verdict and judgment in the sum of six thousand dollars were returned and rendered against...
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