George v. Employers' Liability Assur. Corporation , 219 Ala. 307 ( 1929 )

This case was brought by authority of sections 8376 and 8377 of the Code of Alabama. These sections give an equitable remedy in favor of a plaintiff with judgment unsatisfied after 30 days against a carrier of liability insurance covering the loss.

The complainant alleges facts entitling her to relief. But the defense is that the contract of insurance contains the following clauses: "Whenever requested by the corporation, the assured shall aid in securing information and evidence and the attendance of witnesses and in effecting settlement and in prosecuting appeals. * * * The assured shall at all times render to the corporation all co-operation and assistance in his power." It is claimed that assured breached this stipulation, in that he removed to New York after the loss and failed to appear at the trial as a witness upon notice to do so by the insurer. Before leaving he had made a full and complete statement to the insurer of the circumstances and had conferred with its agents a time or two. They wrote him by registered mail to New York, but he failed to come to court. The insurer's counsel prepared the case for trial, procured the names of the parties acquainted with the facts, filed pleadings and interrogatories to plaintiff, but on the day of trial, assured not being present, withdrew from the case, the court declining to continue it, and a judgment nil dicit was entered. No effort had been made to get the deposition of assured. This suit is based on that judgment by virtue of the Code sections, supra.

Our statute is an exact reproduction of a Massachusetts act, passed in 1914, and it was likewise adopted in Ohio in 1923. The act was considered in Massachusetts in the case of Lorando v. Gethro, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374, and Cogliano v. Ferguson, 245 Mass. 364, 139 N.E. 527. It has also been considered in some of its aspects in Ala. Fed. Auto Ins. Ass'n v. Abrams, 217 Ala. 539, 117 So. 85; Globe Indemnity Co. v. Martin, 214 Ala. 646, 108 So. 761; U.S. F. G. Co. v. Yeates, 217 Ala. 150, 115 So. 174. It was considered in Ohio in New Amsterdam Cas. Co. v. Nadler, 115 Ohio, St. 472,154 N.E. 736, and Stacey v. Fid. Cas. Co., 21 Ohio App. 70,153 N.E. 794; U.S. Cas. Co. v. Breese, 21 Ohio App. 521, 153 N.E. 206. A statute resembling these was enacted in New York and considered by its court in Roth v. National Automobile Mut. Casualty Co., 202 App. Div. 667, 195 N.Y. S. 865, and Schoenfeld v. New Jersey Fidelity Plate Glass Ins. Co.,203 App. Div. 796, 197 N.Y. S. 606; Blashfield on Auto Law, p. 2659.

In view of the conclusion we have reached as to the facts of this case and their effect, we do not find it necessary to consider the effect of our statutes upon the clauses of the policy we have quoted.

In order to constitute a breach of the provisions of said policy in the respect claimed, there must be a lack of co-operation in some substantial and material respect. Any formal, inconsequential, or collusive lack of cooperation is immaterial. If the assured in the ordinary pursuit of his business, and not to evade his duty to the insurer, removed to another city, away from the process of the court, but did not fail to give insurer such information as he possessed, nor to render aid in getting up evidence, when called upon, and did not refuse to testify, but merely failed to come to court at his own expense, when there were numerous persons known to the insurer who had the opportunity to know and testify to what assured knew, and when the policy provides that insurer shall defend the suit at its own cost, he is not thereby in default of his duty in co-operation. There was no tender of expenses by the insurer. It is not claimed that there was a want of co-operation before assured left the city of Birmingham. He should have given his address to insurer before leaving, but the insurer ascertained his address in time to communicate with him before the trial and take his deposition if desirable. The case was set for January 6, 1926, insured ascertained his address early in December before, and wrote him by registered mail December 21st. The letter requested his return to aid in the defense. It did not offer to pay his expenses. No effort was made to take his deposition, nor offer to do so, nor reason assigned for not doing so. The record does not show any lack of information desired by insurer, but only advised him it was necessary for him to be present at the trial, in default of which they proposed to annul the policy.

It is our judgment that the facts in this case do not show such a want of co-operation by the assured as to avoid the contract and deny recovery by the injured party, assuming, but not deciding, that a failure to co-operate would have that effect.

There was a final decree on the pleadings and proof for appellee. The answer admitted the material allegations of the bill, and the only defense was a breach of the co-operation clauses of the policy. We hold that the facts do not show a breach of such clauses, and that the appellant should have a decree against appellee for $5,000 and interest from date of the judgment in favor of appellant against assured. The decree is reversed and one is here rendered as above indicated.

Reversed and rendered.

ANDERSON, C. J., and SAYRE, THOMAS, and BOULDIN, JJ., concur.

GARDNER, J., dissents.

BROWN, J., not sitting.