American Casualty Co. v. Gallo

OPINION

By HORNBECK, PJ.

We have examined the briefs of counsel and have read the record in its entirety.

The record discloses a general verdict. No interrogatories were submitted to the jury and we are thus required to indulge every legal intendment to be drawn from the facts necessary to support the verdict until the record requires us to hold otherwise. Applying this test, we are required to say that giving to the facts to which the witnesses for Gallo testified the effect and credibility which the jury had a right within its province to accord to them, we must support the verdict and judgment. There is ample proof in the record, if true, to support every material claim which it was requisite for the plaintiff to prove to establish her case. There is testimony that the insured, through his agent promptly notified the representatives of the company of the automobile collision in which Mrs. Gallo was injured; that he made a statement as to the facts and circumstances surrounding the accident which was reduced to writing and signed by him; that the Insurance Company acted úpon this notice, interviewed the plaintiff, Gallo, her husband and Colangelo; that the insurance company was cognizant of the claim of Gallo and a purpose to file a suit and of its filing; that the Insurance Company, although with reservation, filed an answer, appeared in court at the trial of the case and actively took charge of and presented the defense of Colangelo; that Colangelo filed an answer in the nature of a general denial, employed counsel and testified at the trial of the damage suit; that counsel for the Insurance Company made the sole argument of the defendant to the jury; that upon the return of a verdict against the Company, it, by counsel, filed a motion for new trial and represented the insurance company in that behalf; that when the judgment was entered upon the verdict, error was prosecuted by the Insurance Company to the Court of Appeals and them counsel appeared for and represented Colangelo.

Although we do not have Colangelo’s testimony in the damage suit, it must have raised a question of fact whether or not he was negligent and responsible for the injuries suffered by Mrs. Gallo because counsel for the Insurance Company not only moved for a new trial but prosecuted error upon the case made on the record.

We would not be required to further consider the disputed question whether or not Colangelo gave the Insurance Company immediate notice of the full details of the accident and notice of the suit or whether or not he cooperated with the Company in a defense against the suit of Gallo inasmuch as there is testimony in the record, which, upon any hypothesis, if true, is sufficient to support the general verdict.

The principal question upon which there is marked difference of testimony relates to the giving of written notice of the collision by Colangelo to the Insurance Company. If a determination that Colangelo gave such notice as he claims was necessary to support the verdict, we would have a very close question, but in our judgment, and this seems to be supported by the opinion of counsel for both parties, there was no specific requirement that Colangelo give written notice to the company. Whether or not a failure to do so would constitute lack of cooperation as contemplated'by the parties to the insurance contract was purely a question of fact which the jury had a right to resolve for or against Colangelo. The record does disclose, in its favorable aspect to the Insurance Company, a friendly relationship between Colangelo and the Gallos and some conduct between them from which the jury might have inferred that Colangelo was unduly interested in Mrs. Gallo’s securing the benefts of the insurance policy.

But, on the other hand, the jury could as well have reconciled all that Colangelo did upon the theory of securing to the wife of his former friend and business associate, Mrs. Gallo, only that to which she was properly entitled under all the facts and circumstances.

We have also examined the general charge of the court and without extended comment, we are satisfied that it was a correct presentation of the law of the case in so far as challenged by plaintiff in error and that the issue for determination was given to the jury in such form as properly protected all its rights.

The record discloses no prejudicial error which would require us to set aside the judgment. It will therefore be affirmed.

KUNKLE and BARNES, JJ, concur.