Nevil v. Wahl

• Decision Date: 19 August 1933
• Docket Number: No. 5261.,5261.
• Citation: 65 S.W.2d 123
• Parties: VIOLA NEVIL, RESPONDENT, v. VASHTI WAHL (DEFENDANT), THE HOME INSURANCE COMPANY OF NEW YORK AND THE HOME INDEMNITY COMPANY OF NEW YORK, GARNISHEES, APPELLANTS.
• Court: Missouri Court of Appeals

65 S.W.2d 123

VIOLA NEVIL, RESPONDENT, v. VASHTI WAHL (DEFENDANT), THE HOME INSURANCE COMPANY OF NEW YORK AND THE HOME INDEMNITY COMPANY OF NEW YORK, GARNISHEES, APPELLANTS.

No. 5261.

Springfield Court of Appeals. Missouri.

August 19, 1933.

Motion for Rehearing overruled, November 29, 1933.

Appeal from the Circuit Court of Pemiscot County. — Hon. John E. Duncan, Judge.

Ward & Reeves for appellants.

Sharon J. Pate and Sam J. Corbett for respondent.

BAILEY, J.

This is an appeal from a judgment in the sum of $5,000 against the garnishees in a garnishment proceeding based upon an execution issued on a default judgment for damages against defendant Vashti Wahl. This judgment was obtained on the 7th day of December, 1931. One the first day of February, 1932, plaintiff caused a general execution to be issued against defendant which was returned unsatisfied. At the same time The Home Insurance Company and The Home Indemnity Company were each served with a summons as garnishee to answer interrogatories, returnable March, 22, 1932. After unsuccessful motions to remove the cause to the Federal Court on the part of said garnishees, plaintiff filed interrogatories for each of said garnishees as to whether said garnishees had any property belonging to defendant or if they were indebted to defendant in any sum or bound to pay defendant money not yet due. Each garnishee filed a separate answer making a negative reply to each interrogatory. Thereafter plaintiff filed separate denials of the garnishees' answers, in each of which it was pleaded among other things that: "at the time said garnishee was served with the summons of garnishment in this cause, the said garnishee was justly indebted to the defendant, Vashti Wahl (Mrs. J.S. Wahl), by reason of the fact that theretofore the garnishee under an insurance policy issued by its jointly with The Home Indemnity Company, New York, a stock company, another insurance company, under Policy No. CA1114617, Renewal No. 9060283 Home-Maryland, had insured the defendant, Vashti Wahl (Mrs. J.S. Wahl) against liability for damages for bodily injury or death of one person in the sum of $10,000 for any loss by reason of the liability imposed by law upon the defendant for such bodily injuries or death resulting therefrom, which should be incurred by the defendant, for damages accidently suffered or alleged to have been suffered during the policy period, by any person or persons, by reason of the ownership, maintenance and use by the defendant of her certain automobile described in said policy, — while being used by her for the purpose of business and pleasure only during the policy period under said policy, that is to say, from the 5th day of March, 1931, noon, to March 5, 1932, noon, standard time, — that thereafter this plaintiff procured a judgment against said defendant, Vashti Wahl (Mrs. J.S. Wahl), on the 7th day of December, 1931, for personal injuries sustained by this plaintiff, Viola Nevil, while riding as a guest in said automobile described in said policy, plaintiff being the guest of the insured, said insurer being over the age of twenty-one years, and at the time of plaintiff's injuries, to-wit: on the 13th day of September, 1931, was driving and operating said automobile herself, and on account of the negligence of defendant in operating said automobile plaintiff was injured and secured said judgment against said defendant on said 7th day of December, 1931; and that the defendant, Vashti Wahl, upon said suit being filed against her by this plaintiff, for said personal injuries upon which plaintiff afterwards obtained judgment for the sum of $5,000 against defendant, gave notice thereof with full particulars to said garnishee insurance company, and also upon the occurrence of the accident defendant gave prompt written notice thereof to the company's home office at New York, New York, and also to its local authorized agent; and that after the institution of said suit for damages by the plaintiff against the defendant, the garnishee sent one of its authorized agents to Caruthersville, Missouri, the place of residence of plaintiff and defendant, and where said policy was issued, to investigate said claim and suit of this plaintiff, and said authorized agent of said garnishee did investigate the same, and was informed by plaintiff's counsels of the time and place of the trial to be had in said suit, but that the garnishee did not defend said suit for the defendant as agreed in said policy, though having full knowledge and notice thereof after having investigated the same as aforesaid, and that plaintiff procured judgment as aforesaid against the defendant for the sum of $5,000 as aforesaid, in which sum, together with the costs of said action, under and by virtue of the terms and conditions of said policy of insurance, the garnishee became and was indebted to this defendant."

The Home Insurance Company filed a reply setting up that it became liable under the policy only for such damages as set out in Part 1 of the schedule (fire, lightning and transportation) and was therefore not liable under the policy for the damages sued for by plaintiff in this case.

The Home Indemnity Company also filed a separate reply in which it admitted the execution of the policy and that plaintiff obtained a judgment by default against defendant on the 7th day of December, 1931; denied that its agent at Caruthersville had any knowledge of the then pending suit for damages; admitted that after the judgment defendant notified said garnishee that judgment had been obtained but denied that defendant performed the conditions required of her by the policy to be performed in that defendant failed to send garnishee the summons and petition served upon her after plaintiff filed suit and the garnishee had no notice of said suit until after default judgment was had; that after such default judgment was obtained defendant, on account of the relationship alleged to exist between the parties, refused to aid and co-operate with said garnishee, as required by the terms of the policy, in its effort to have said judgment set aside, and refused to permit garnishee's attorneys to file a motion in her name for that purpose; that the injuries to plaintiff were not caused by the negligence of defendant and garnishee advised defendant that plaintiff had no cause of action against her, but defendant, knowing the facts, failed to co-operate with garnishee to aid in the defense of said action, but aided plaintiff, contrary to the provisions of the policy, by reason of which garnishee was not liable.

The trial was before the court without a jury. The policy, which plaintiff introduced in evidence, is in two parts and is called a combination policy, signed by the Home Insurance Company, a stock company, and by the Home Indemnity Company, also a stock company. In Part I provision is made for protection of the insured against loss by fire theft, robbery, tornado, explosion etc., but makes no mention of indemnity insurance. On its face Part I purports to define and limit the undertakings and liability of the Home Insurance Company. Separate premiums are set out for the different items above mentioned.

Part II of the policy defines the undertakings and liability of the Home Indemnity Company. It provides for indemnity to defendant for injury to others. The limit of liability for the death or injury of one person is $10,000. Part II also provides that the Home Indemnity Company shall give to the insured prompt and efficient service in investigating cases of bodily injuries to others; in conducting negotiations for settlement of any claims on account of such injuries; and in defending any suit brought to recover damages on account of such cases of bodily injury unless the company may elect to effect settlement of such suit. The Home Indemnity Company further agreed to pay, in addition to damages, all expenses of investigation, negotiation or defense and all costs taxed against the assured in any such suit defended by the company. The policy contains further provisions that: "Notices to Company — D. Upon the occurrence of an accident, the assured shall give prompt written notice thereof to the company's home office at New York, New York, or to an authorized agent. If any claim is made on account of such accident, the assured shall give like notice thereof with full particulars. If thereafter, any suit or other proceeding is instituted against the assured to enforce such claim, the assured shall immediately forward to the company at its home office every summons or other process served upon him. Notice given by or on behalf of the assured to any authorized agent of the company within the state in which this policy is issued, with particulars sufficient to identify the assured, shall be deemed to be notice to the company, it being understood that failure to give any notice required to be given by this policy, within the time specified therein, shall not invalidate any claim made by the assured if it shall be shown not to have been reasonably possible to give such notice within the prescribed time, and that notice was given as soon as was reasonably possible.

"Cooperation of Assured — E. The assured shall not voluntarily assume any liability, nor incur any expense, other than for immediate surgical relief, nor settle any claim, except at the assured's own cost. The assured shall not interfere in any negotiation for settlement, nor in any legal proceeding, but whenever requested by the company and at the company's expense, the assured shall aid in securing information and evidence and the attendance of witnesses, and shall co-operate with the company (except in a pecuniary way) in all matters which the company deems necessary in the defense of any suit or in the prosecution of any appeal."

The policy further provided in paragraph K that no change in the agreements, general conditions etc., either printed or written should be...