Tucker v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 14 April 1958
• Docket Number: No. 17412,17412
• Citation: Tucker v. State Farm Mut. Auto. Ins. Co., 103 S.E.2d 272, 232 S.C. 615 (S.C. 1958)
• Court: South Carolina Supreme Court
• Parties: Edward TUCKER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Page 272

103 S.E.2d 272

232 S.C. 615

Edward TUCKER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

No. 17412.

Supreme Court of South Carolina.

April 14, 1958.

Murchison & West, Camden, for appellant.

Weinberg & Weinberg, Sumter, DeLoach & Wilson, Camden, for respondent.

STUKES, Chief Justice.

This appeal is from the direction of verdict in favor of the respondent insurer because of the breach by the insured of the following provision of an automobile liability policy:

'Assistance and Cooperation of the Insured. 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 shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.'

The insured's car left the road, turned over and his cousin-passenger, who is the plaintiff-appellant in the present action, was injured. He brought suit against the insured and recovered judgment by default. It is upon that judgment that the instant action was brought against the insurer.

The insured lives in a remote rural section of Kershaw County, in which the accident occurred on Nov. 25, 1954. His post office address is R. F. D. Ridgeway, which is in an adjoining county. He did not notify the insurer of the accident and its first knowledge of it was a letter from the attorneys for appellant. They commenced action against the insured on Dec. 7th upon a verified complaint in which it was alleged that Tucker's injuries were proximately caused by negligent and reckless speed and failure of the insured to keep his car under proper control.

The insurer's agents had difficulty locating the insured. Registered letter was written him on Jan. 13, 1955 advising him of investigation of the accident, reminding him of his obligation to cooperate, and requesting that he telephone collect to the office of the insurer's adjuster in Rock Hill and make appointment with him. There was no response to this letter and an agent of the insurer went to the insured's home on Jan. 21 and obtained a signed claim report in which the insured stated that he was driving about 65 miles per hour when the rear tire blew out, which caused the upset, and that he was fined for reckless driving. On Feb. 4, this agent and the insurer's adjuster visited the insured against at his home and a detailed statement was prepared by his dictation and afterward read to him. It recited, as had the accident report, that a tire blew out, causing the accident, although the tires were good; that in the Highway Patrol report it was said that insured tried to miss a hog, quoting from the statement, 'but actually there was no hog and the accident happened when my tire blew out.' The adjuster wrote the statement with pen and the agent signed as a witness; both of them testified at the trial of this action. When completed the statement and the pen were handed to the insured and he took them as if to sign the statement, but his mother, who was present, intervened and told him not to sign the statement because a lawyer had instructed him not to sign anything until he (the lawyer) had 'O.K'd it.' Thereupon, after holding them a few minutes the insured handed the statement and the pen back to the adjuster, without having signed. The latter reminded the insured of his obligated to cooperate with the insurer and told him that the insurer would be in further contact with him. The insured did not deny this incident in his testimony, and his mother did not testify; but he did deny that the lawyer made the statement to him.

The Highway Patrol report of the accident, dated Nov. 27, 1954, was admitted in evidence by consent. It contained the following: 'Stated he (the insured driver) tried to miss hog. He was at such a fast speed he lost control of the car and it left the road and turned over.'

Respondent wrote the insured by registered letter, dated Feb. 9, and gave him the name and office address of a prominent law firm in Columbia which had been employed to defend the actions against him. The following is quoted from this letter:

'These attorneys will give the matter all necessary attention, and when they want you to call at their office with reference to this case, they will notify you. When you hear from them, please comply with all requests that they may make. As the duly authorized representatives of your insurance carrier, these lawyers under the terms of your policy, are entitled to your complete cooperation throughout the handling of this litigation and we will appreciate their having the benefit thereof. * * * We wish to point out to you at this time that under the policy provisions we, as your insurers, and our duly authorized representatives are entitled to your full and complete co-operation in our investigation and/or handling of this matter. Failure on your part to so cooperate may result in our denial of coverage to you for the accident in question.'

The senior member of this firm of attorneys, who is a lawyer of the highest repute, testified at length, on which account, and properly, he did not appear as counsel in the case. 19th Canon of Professional Ethics, Rule 33 of this court. His firm was employed in December 1954 and he obtained an extension of time to answer the complaint in the action of Tucker, plaintiff, against the insured. He wrote the latter on Feb. 26, 1955, advising him that the case was set for trial on Mar. 4 and that he (the attorney) would be at Camden courthouse on Feb. 28 and would call on the insured to discuss the case and have him sign the answer. Insured was not at the courthouse and the attorney did not locate him. The case was continued beyond the March term.

The attorney returned to Camden on Mar. 8 and, after difficulty and delay, found the insured's home in the country. There he was told by the in the country. There that the latter was at work at the DuPont plant near Camden. There the attorney found him and they conferred in the former's automobile. A proposed answer was shown the insured and he was requested to sign the verification. The verification of the complaint necessitated verification of the answer. Code of 1952, sec. 10-603. It was explained to the insured and he held it in his hand, as if reading it. However, he declined to sign the verification and said in substance, 'I have just decided I am not going to have any more to do with this case.' The attorney repeated his former explanation of the necessity of defense of the action and of insured's verification of the answer; he explained the requirements of the policy that the insured cooperate in the defense, file answer, go to court, give evidence, etc.; but the insured was adamant in his refusal to sign the verification.

On Mar. 12 the attorney wrote the insured a registered letter which contained the following:

'While in Camden, the writer also requested that you read over and verify the Answer which we had prepared for you in the suit by Edward Tucker, but you declined to verify the Answer and informed the writer that you did not intend doing anything further about that particular law suit. We are passing this information on to the insurance company, and will let you know their reaction, but again call your attention to the fact that under the provisions of your insurance contract, you are required to give your cooperation, which, in this instance, you have not done.'

Again, on Mar. 25 the attorney wrote the insured by registered mail, as follows:

'This is to advise that our client, State Farm Mutual Automobile Insurance Company, is disclaiming coverage with respect to the law suit brought against you by Edward Tucker in the Court of Common Pleas for Kershaw County, South Carolina, arising out of the accident of November 25, 1954. Accordingly, we are herewith returning to you the copy of the Summons and Complaint which was served upon you, so that you can make your own arrangements through your own attorney, at your own expense, to defend the action.'

Finally, on June 13 the attorney wrote the insured the following:

'On March 25, 1955, we wrote you advising that upon instructions of our client, State Farm Mutual Automobile Insurance Company, we were withdrawing from representation of the defense in the above case, and suggested that you promptly arrange to get other representation. We have not heard from you, and on receipt of a copy of the Court roster for the current term, which lists us as attorneys for you, we concluded to file a Petition requesting that we be released by the...