National Surety Corporation v. Dotson

• Decision Date: 28 September 1959
• Docket Number: No. 13756.,13756.
• Citation: 270 F.2d 460
• Parties: NATIONAL SURETY CORPORATION, Appellant, v. Geneva DOTSON, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

270 F.2d 460 (1959)

NATIONAL SURETY CORPORATION, Appellant, v. Geneva DOTSON, Appellee.

No. 13756.

United States Court of Appeals Sixth Circuit.

September 28, 1959.

O. T. Hinton, Pikeville, Ky., Hinton & May, Pikeville, Ky., on brief, for appellant.

V. R. Bentley, Pikeville, Ky., for appellee.

Before ALLEN, MARIS and MILLER, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

The appellee, Geneva Dotson, recovered a judgment in the Pike Circuit Court of Kentucky for $8,000 against her husband, Willie Dotson, for damages on account of personal injuries suffered by her in an automobile accident while riding as a passenger in a car being operated at the time by her husband. Willie Dotson carried an automobile liability policy on the car in question, issued by the appellant, National Surety Corporation, which was in force and effect at the time. Following the issuance of an execution under the judgment and its return unsatisfied, this action was instituted in the District Court by the appellee against the insurer, as provided for by the provisions of the policy. Following a jury trial and a verdict in favor of the appellee in the sum of $8,000, judgment was entered against the appellant, followed by this appeal.

The accident occurred on February 11, 1956. Willie Dotson in attempting to pass another car being driven by a man named Thacker was forced off the highway by the Thacker car and lost control of his own car, which resulted in the injuries to his wife. On the same afternoon the insured reported the accident to James I. Dotson (not related to appellee), who was the local agent for the appellant, who, in turn, reported the accident on the form furnished by the insurance company to the company's office at Lexington, Kentucky. The insured, in reporting the accident, claimed it was not caused by his negligence.

The insurance policy, under Coverage A thereof, obligated the insured "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, * * *." Coverage C-1 of the policy provided for medical payments to each person who sustained bodily injury while in the car caused by an accident, but this coverage was not dependent upon negligence of the insured. Due to the statement of Willie Dotson that the accident was not caused by his negligence, the insurance company did not negotiate with Geneva Dotson with respect to bodily injuries. It did, however, send to both Mr. and Mrs. Dotson forms to fill out and execute concerning claims for medical expenses, which forms were filled out and returned to the company. These claims were duly paid. In making this claim for medical expenses Geneva Dotson did not make or refer to any claim on her part for personal injuries by reason of the negligence of her husband.

Thereafter, on May 31, 1956, Willie Dotson took his wife, Geneva Dotson, who had obtained possession of the insurance policy, to his regular attorney in Pikeville, Kentucky, who, after reading the policy and discussing the matter with her, filed suit for her on that day in the Pike Circuit Court against her husband, Willie Dotson. Summons was served on Willie Dotson on June 14, 1956. No defense was made to the suit and on August 29, 1956, after receiving evidence on the question of injuries only, the jury returned a verdict of $8,000.

The policy contained a provision which required the insured to give written notice of an accident to the insurer as soon as practicable. It also contained in a separate paragraph this provision, "Notice of Claim or Suit — Coverages A and B. If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative." Another paragraph of the "Conditions" of the policy provided, "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."

Appellant concedes that the insured gave prompt notice to it of the accident, but contends that neither the insured nor anyone on his behalf forwarded to the company the summons which was served upon him in the state court action, by reason of which fact the suit was not defended and the judgment obtained. It is agreed that the summons was not forwarded to the insurance company. Appellee contends, however, that verbal notice was given to the insurance company that the suit had been filed in sufficient time for it to defend the action and that this was a sufficient compliance with the provision of the policy.

With respect to notice of the suit, appellee's evidence was as follows. Geneva Dotson testified that on June 27, 1956, she and her husband stopped at a coal tipple near Toler, Kentucky, where the agent had a truck mine, at which time she talked to the agent. In answer to the question, "What did you tell him?" she said, "I told him if they didn't do something that I had already brought suit against Willie, you know." "Q. Willie Dotson? A. Yes, sir, and he said, `Now, you know you didn't,' and just laughed and walked off is all he said." With respect to this meeting with the agent, Willie Dotson testified as follows about his wife's conversation, "And as I pulled over to one side and my wife told him, said, now, `I have brought suit against my husband,' and he said, `Well, you wouldn't sue your husband?' and she said, `Well', says, `bad as I got hurt,' says, `looks like I am going to have to do something.'" "Q. Well, now, what did Mr. Dotson say to you when Mrs. Dotson told him that she had sued you? A. He didn't say nothing, only turned off and we started out and left."

Geneva Dotson also testified that on a later occasion, when she and her husband were in a car and met the agent at a stop light in Williamson, "I told him that I brought suit against Willie and he just laughed at me and said `You know you didn't.'"

Although Geneva Dotson testified that Willie Dotson did not say anything on these occasions, Willie Dotson testified differently. With respect to the conversation with the agent on June 27, Willie Dotson testified that he told the agent, "My wife has sued me" and that the agent turned and walked off. He testified as follows with respect to a conversation with the agent about two or three weeks before the trial.

"Q. Now, was James I. Dotson notified that you had been summoned, been served with a summons in that case before that day of the trial? A. I told — stopped there to see Mr. Dotson and talking to him and I told him, I said, `Looks like something is going to have to be done,\' and he said, `Your wife won\'t sue you.\' I said, `Mr. Dotson, you don\'t know what women will do this day and time.\' I said, `Women is getting funny as men,\' and I said `because you can\'t tell what they will do,\' and he went ahead then, me and him, separate."

Based upon this evidence and relying upon the policy provisions above referred to, the appellant moved for a directed verdict both at the close of appellee's case and at the conclusion of all the evidence, which motions were overruled. The District Judge instructed the jury that the provisions of the...