Witt v. Universal Automobile Ins. Co.

• Decision Date: 14 April 1938
• Docket Number: No. 1981.,1981.
• Citation: 116 S.W.2d 1095
• Parties: WITT v. UNIVERSAL AUTOMOBILE INS. CO. et al.
• Court: Texas Court of Appeals

116 S.W.2d 1095

WITT v. UNIVERSAL AUTOMOBILE INS. CO. et al.

No. 1981.

Court of Civil Appeals of Texas. Waco.

April 14, 1938.

Rehearing Denied May 19, 1938.

Appeal from District Court, Coryell County; Giles P. Lester, Special Judge.

Action by Minnie Lou Witt against the Universal Automobile Insurance Company and others for injuries sustained while riding in an automobile, after judgment against automobile owner for such injuries proved uncollectible. Judgment for defendants, and plaintiff appeals.

Reversed and remanded for new trial.

Robert W. Brown, of Gatesville, for appellant.

T. R. Mears, of Gatesville, J. L. Goggans, of Dallas, and McClellan, Lincoln & Jones, of Waco, for appellees.

ALEXANDER, Justice.

Minnie Lou Witt sustained an injury while riding as a passenger in an automobile belonging to D. H. Culberson and driven by Culberson's daughter. She recovered a judgment against Culberson for the sum of $10,000.00, as the result of such injuries, and, being unable to collect same from Culberson, she brought this suit against the Universal Automobile Insurance Company and sought recovery from it on the ground that it had issued to Culberson a policy of insurance protecting him against such liability. The insurance company defended on the ground that Culberson had breached the terms of its policy by failing to cooperate and in refusing to allow the insurance company to defend the suit brought by Miss Witt against him. At the conclusion of the evidence the court discharged the jury and rendered judgment for defendant. The plaintiff appealed.

On March 6, 1930, Universal Automobile Insurance Company issued a policy to D. H. Culberson, whereby it agreed to indemnify him to the extent of $5,000.00 against loss by reason of liability growing out of the use of his automobile. The policy contained the following provisions:

"In the event that loss from the perils set forth in Item 6 and/or Item 7 is insured against hereunder, then as respects the peril or perils so insured against the limits of the Company's liability shall be:

"(A) To investigate all accidents covered by Item 6 and/or Item 7 of the `Schedule of Coverage' of this policy and at its expense to employ attorneys to represent the Assured in all suits brought hereon, whether groundless or not; and

"(B) In event a final judgment be rendered against the Assured, to pay the same to an amount not exceeding the limits specified herein; and in addition,

"(C) To pay, irrespective of the limit of liability stated in the Policy, all costs taxed against the Assured in any such defended suit, all expenses incurred by the Company, all interest accruing after entry of judgment until the Company has paid, tendered or deposited in Court such part of such judgment as does not exceed the limit of the Company's liability thereon, also any expense incurred by the Assured for such immediate surgical relief as shall be imperative at the time of bodily injury.

"(O) Report of Accidents. Upon the occurrence of any loss or accident covered under Section 2 of the Schedule of Perils, and irrespective of whether any injury or damage is apparent at the time, the Assured shall give immediate written notice to the Company at its office in Dallas, Texas, or to its authorized agent, with the fullest information obtainable at the time; if a claim is made on account of any such accident the Assured shall give like notice thereof immediately after such claim is made, with full particulars; if thereafter any suit is brought against the Assured to enforce such claim, the Assured shall immediately forward to the company or its authorized agent every summons or other process as soon as the same shall have been served; whenever requested by the Company, the Assured shall aid in effecting settlement, securing information and evidence, the attendance of witnesses and in prosecuting appeals, and at all times render all possible cooperation and assistance; the Assured shall not voluntarily assume any liability or interfere in any negotiations for settlement or in any legal proceedings or incur any expense or settle any claim, except at Assured's own cost, without the written consent of the Company previously given."

Other pertinent terms of the policy of insurance are stated more in detail in the opinions on the former appeal of this same cause. See Universal Automobile Ins. Co. v. Culberson, Tex.Civ.App., 54 S.W.2d 1061; Id., 126 Tex. 282, 86 S.W.2d 727, 87 S.W.2d 475.

It was alleged by the insurance company that prior to the trial of the suit by Miss Witt against Culberson, the latter breached his contract by refusing to cooperate with the insurance company in the defense of the suit. These charges were denied by Culberson. It is said that whether or not in any particular instance the insured has so far failed to give cooperation in and about the defense of the action which is contemplated by the cooperation clause in a policy, such as is here under consideration, will ordinarily be a question of fact determinable by the jury. Automobile Underwriters' Ins. Co. v. Long, Tex.Com.App., 63 S.W.2d 356; Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Ed., vol. 6, § 4059, p. 413; Metropolitan Casualty Ins. Co. v. Blue, 219 Ala. 37, 121 So. 25; U. S. Fidelity & Guaranty Co. v. Snite, 106 Fla. 702, 143 So. 615; Finkle v. Western Automobile Ins. Co., 224 Mo.App. 285, 26 S.W.2d 843; Marley v. Bankers' Indemnity Ins. Co., 53 R.I. 289, 166 A. 350; 72 A.L.R. 1454, annotations on Co-operation Clauses following Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 160 N.E. 367; Ems v. Continental Auto Ins. Ass'n, Mo.App., 284 S.W. 824. Without reciting the evidence introduced pro and con by the parties on this issue, we think it is sufficient to state that there is a direct conflict in the testimony, and, as a consequence, the evidence merely raises an issue for the jury, and that the court, insofar as this issue is concerned, should not have withdrawn the case from the jury.

It is further contended by the insurance company that the evidence shows as a matter of law that Culberson breached his contract by refusing to allow the company to defend the suit as provided in the policy. This issue arose in this manner. Miss Witt brought her suit against both Culberson and the insurance company. During the pendency of the suit and prior to a trial thereof, a dispute arose between Culberson and the attorneys for the insurance company in which the latter charged Culberson with failure to cooperate in the defense of the suit. After much discussion of the matter, the insurance company's attorneys, on July 24, 1931, wrote Culberson complaining of his failure to cooperate and stated, in part, as follows:

"For the foregoing reasons and because the approaching trial must develop inevitably a conflict of interest between you and the company, you are advised that the company has decided to withdraw entirely all defenses in your behalf. This means that the answer heretofore filed by us in your behalf will be withdrawn and you must promptly file in your own behalf such answer or appearance as you care to make in the case. * * * *

"Under the circumstances the company is compelled to deny and does deny any liability to you or any person under the policy in question."

On July 29, 1931, Culberson replied by letter, denying any failure on his part to cooperate and concluded as follows:

"I will employ counsel and cooperate...