Motorists Mut. Ins. Co. v. Johnson

Decision Date04 October 1963
Docket NumberNo. 2,No. 19476,19476,2
Citation139 Ind.App. 618,192 N.E.2d 769
PartiesMOTORISTS MUTUAL INSURANCE COMPANY, Appellant, v. Ella JOHNSON, Administratrix of the Estate of James Johnson, Deceased, Appellee
CourtIndiana Appellate Court

Emerson Boyd, Robert C. Riddell, Indianapolis, for appellant.

Locke, Reynolds, Boyd & Weisell, Indianapolis, Christian, White, Waltz & Klotz, Noblesville, of counsel.

Addison M. Dowling, Indianapolis, Russell I. Richardson, Lebanon, Frank W. Campbell, Noblesville, for appellee.

Stewart & Richardson, Lebanon, Campbell, Campbell, Malan & Kyle, Noblesville, Albert W. Ewbank, Indianapolis, of counsel.

MOTE, Chief Justice.

Appellee commenced an action on October 15, 1954, later venued from Marion County to the Hamilton Circuit Court, where it was docketed as Cause No. B-0466, against William Farley and William Gammon for the wrongful death of appellee's decedent. On June 8, 1956, a judgment in the sum of fifteen thousand ($15,000.00) dollars was rendered against them on a verdict by a jury in said cause.

The record shows that appellee's decedent was hit and killed by an automobile during the early morning of October 18, 1952. The automobile, driven by the said Gammon, owned by said Farley, was insured by appellant.

Because of the failure to collect, and the non-payment of, the judgment rendered in said Cause No. B-0466 on June 8, 1956, appellee commenced this action on July 26, 1958, against appellant, docketed in the Hamilton Circuit Court as Cause No. B-2231, by filing a complaint based upon the contract or policy of insurance on the automobile owned by Farley, designed to protect and insure him and any other person using said automobile with Farley's permission. The said complaint, among other things, alleged that appellant refused to defend Gammon in the trial of the tort action despite Gammon's statement, and subsequent sworn testimony prior to and at the trial, that he was using the vehicle during the time in question with Farley's permission; and although appellant caused attorneys to appear and plead for Farley in said tort action, said attorneys once withdrew at the trial, then reappeared for him, then made a second attempt to withdraw after Farley's testimony which was contrary to the information previously given by him to appellant; that said second attempt to withdraw as attorneys of record for Farley, upon objection of plaintiff's counsel, was denied by the trial court; that appellant waived and was estopped to deny any defense as to its insurance coverage because of making objection to an instruction about to be given to the jury; which objection was sustained; and that Farley and Gammon had performed all conditions precedent required by the said contract or policy of insurance; thus entitling appellee to recover the amount of the tort judgment in the sum of fifteen thousand ($15,000.00) dollars, six (6) percent interest from May 25, 1956, and costs.

Attached to the said complaint were Exhibit A, the insurance policy; Exhibit B, the complaint in the prior tort or wrongful death action; Exhibit C, the answer of defendant Farley in said prior action; and Exhibit D, the jury's verdict in said prior action.

An insurance policy is an contract and its interpretation and construction is controlled by the same law as any other contract. Metropolitan Life Insurance Company v. Alterovitz (1938), 214 Ind. 186, 14 N.E.2d 570, 117 A.L.R. 770. The rights and liabilities of the various parties to a contract must be ascertained by reading the contract in its entirety, rather than from isolated parts...

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3 cases
  • Motorists Mut. Ins. Co. v. Johnson
    • United States
    • Indiana Appellate Court
    • July 14, 1966
    ...not consider this matter further. FAULCONER, J., concurs. 1 For Appellate Court opinion of October 4, 1963, see: Motorists Mutual Insurance Company v. Johnson, 192 N.E.2d 769. For Supreme Court opinion of May 18, 1964, see: Motorists Mutual Insurance Company v. Johnson, 198 N.E.2d 606.* By ......
  • Miller v. Wabash Fire & Cas. Ins. Co., s. 19712
    • United States
    • Indiana Appellate Court
    • November 19, 1963
    ...and Ohio Railroad Company v. Lilly Paint Products, Inc. (1963), Ind.App., 188 N.E.2d 278, 280, 281, pt. 5; Motorists Mutual Insurance Company v. Johnson (1963), 192 N.E.2d 769, 770, pt. To determine whether the decision of the court is contrary to law because not sustained by sufficient evi......
  • Motorists Mut. Ins. Co. v. Johnson
    • United States
    • Indiana Supreme Court
    • May 18, 1964
    ...a jury trial resulting in judgment against appellant. This was appealed to the Appellate Court. The Appellate Court's opinion, Ind.App., 192 N.E.2d 769, affirmed that of the trial court, but not on the merits. Its prime reason for affirming is based upon the failure of appellant to set fort......

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