Stonewall Ins. Co. v. Perkins, 6 Div. 594

• Decision Date: 19 March 1970
• Docket Number: 6 Div. 594
• Citation: 285 Ala. 699,235 So.2d 838
• Parties: STONEWALL INSURANCE COMPANY v. Willie N. PERKINS et al.
• Court: Alabama Supreme Court

Page 838

235 So.2d 838

285 Ala. 699

STONEWALL INSURANCE COMPANY v. Willie N. PERKINS et al.

6 Div. 594.

Supreme Court of Alabama.

March 19, 1970.

Rehearing Denied June 18, 1970.

Baker, McDaniel & Hall, Birmingham, for appellant.

Ross & Ross, Saunders, Paden & Green, Bessemer, for appellees.

PER CURIAM.

Appellant brings for review in this court an amended final decree, rendered and filed in the Bessemer Division of the Circuit Court of Jefferson County, in Equity, wherein appellant filed a declaratory petition which resulted in an adverse decree.

It appears from the pleadings and proof in the declaratory proceedings that appellant issued an insurance policy to Willie N. Perkins, one of the instant appellees, by which, in Section 1(A), it agreed:

'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, caused by an accident and arising out of the ownership, maintenance or use of the (insured) automobile.'

Also, in Section II of the policy the following appears:

'With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:

'(a) defend any suit against the insured alleging such injury * * * and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; * * *'

Under the heading 'CONDITIONS.' Section 1 of the policy there appears:

'Notice of Accident--Coverages A (Bodily Injury Liability), B (Property Damage Liability) and C (Medical Payments): When an accident occurs written notice shall be given by or on behalf of the insured to the company or its authorized agents as soon as practical. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'

Also under the same Title, we quote paragraph 7:

'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 the 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.'

Section 12 under the heading 'CONDITIONS' reads:

'Assistance and Cooperation of the Insured--Coverages A and B: The insured shall cooperate with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits * * *.'

The insured is defined in the policy:

'III * * * (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured * * *, and also includes any person while using the automobile * * * provided the actual use of the automobile is by the named insured or such spouse or with the permission of either * * *.'

Attached to the policy here involved is a valid endorsement as follows:

'EXCLUSION OF MALE DRIVERS UNDER AGE OF 25

'In consideration of the premium for which this policy is written, it is hereby understood and agreed that no insurance is afforded under this policy while any automobile is being driven, operated, manipulated, maintained, serviced, or used in any manner by a male person under the age of twenty-five (25) who resides in the same household as the insured or is employed as a chauffer (sic) for the automobile.

'This endorsement is hereby made a part of the policy when issued and shall take effect simultaneously with said policy.'

It is undisputed that on July 18, 1965, the insured automobile was involved in an accident or collision with a motorcycle occupied by appellees Perry Barnes and Barbara Poole, causing them physical injuries, for which both parties brought suit against the insured and his minor stepson to recover damages for physical injuries which they contend they suffered as a result of the accident. Also the mother of Barbara Poole brought suit to recover for medical expense and loss of services which she claimed as damages.

The insured on July 19, 1965, the next day after the accident, reported to appellant that the accident had occurred and at the time, in the presence of appellant's attorney, signed a written statement that his stepson, Ozie Charles Williams, a minor who was living in his household was using the insured automobile when the accident occurred to take his wife to see a sick cousin and that he, the insured, was not in the car.

On the same date Ozie Charles Williams, the minor stepson, gave a written statement to the same effect; that he was living in the house with his stepfather, and that he was a minor.

Likewise, Cora Perkins, wife of the insured, gave a written statement that she was in the automobile at the time of the accident and that her son, Ozie Charles Perkins, who was a minor, was driving the automobile at the time of the accident; that he lived in the same household with her and her husband, Willie N. Perkins.

Acting on these written reports and on a police report after investigation, which stated that Ozie Charles Williams was the driver of the automobile involved in the accident, which also listed the name of another witness not interviewed by appellant or its representatives, appellant declined to defend the suits and so notified the insured, who employed his own attorney.

The suit of Perry G. Barnes went to trial before the instant proceedings were filed, and resulted in a verdict of $3,500 for plaintiff against Perkins alone. Ozie Charles Williams was a party defendant to all the suits.

At the trial of the Barnes suit, Willie N. Perkins testified that he was not operating or in the insured automobile when the accident occurred, and that Ozie Charles Williams was driving at the time. Likewise, Ozie Charles testified that he was doing the driving. Neither the insured nor the minor contradicted their statements, Supra, but on the contrary, confirmed their report to the appellant. We here note that a certified transcript of the evidence taken at the trial was introduced by appellant in the instant proceedings; also the Chancellor presiding at the hearing of the evidence in such proceedings was also the trial judge in the Barnes suit.

At the conclusion of the declaratory trial, the court entered an amended and final decree in substance as follows:

(1) That on the occasion of the accident on July 18, 1965, Willie N. Perkins was...