Rohlf v. Great American Mutual Indemnity Co.

Richards, J. The plaintiff was injured on August 6, 1922, in a collision between two automobiles, while he was riding as a guest with his friend, A. C. Chapman, in Chapman’s car. Chapman held indemnity insurance in the defendant company pro *209 tecting him from such liability as was within the terms of the policy. Thereafter Rohlf brought an action against Chapman for the injuries suffered, and recovered a verdict and judgment of $1,500. The judgment not being satisfied, he brought this action against the company on the indemnity policy issued by it. A jury being waived, the case was tried to the court, a judgment was rendered for the defendant, dismissing the petition, and this proceeding in error is brought to secure a reversal of the judgment. The main defense upon which the indemnity company relied is based on the claim made by' it that the assured willfully failed to co-operate and assist it in making a defense to the original action brought by Rohlf. The provision of the policy covering this matter is Section 2, par. 2, which reads as follows: “(2) Go-operation of the assured. 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 proceeding, or incur any extra expense, or settle any claim, except at assured’s own cost, without the written consent of the company, previously given. The company reserves the right to settle any such claim or suit brought against the assured. ’ ’ ■ The policy also contained a provision relating to defending actions brought against the assured, reading as follows: “In conjunction only with coverages granted *210 under clauses A and/or B of this section the company .does'hereby agree to investigate all accidents covered by this policy and to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages suffered or alleged to have been suffered on account of the bodily injuries and/or death and/or the damage to or the destruction of property as set forth in this section.” The plaintiff in his reply avers that the company appeared in open court and defended the action and offered evidence in defense upon the matters set forth in the answer in that case, and filed in that case the answer of A. C. Chapman, and is thereby estopped from asserting any of the claims made in its answer in this ease. The record discloses that, after the collision, Chapman notified the company thereof. No action was brought by Rohlf against Chapman on account of the collision until May 6, 1924, one year and nine months after the collision. Chapman made no defense to that action. The company had, in the meantime, made diligent search for Chapman in Willard, Cleveland, Lorain, and Toledo, finally ascertaining, on February 4, 1925, that he was in Toledo. On February 7, 1925, the company filed an answer on behalf of Chapman in that action, the answer being verified by one of the attorneys, for the reason, as stated in the verification, that the defendant was absent from Huron county. Immediately on ascertaining the whereabouts of Chapman in Toledo on February 4, 1925, the company obtained a written statement from him detailing the circumstances of the collision in which Rohlf was injured. In that' *211 statement, Chapman asserted that he himself was nowise at fault, and that the driver of the other car was entirely at fault for the collision, in that, while Chapman was on the right side of the road, the driver of the other car turned his car across the road and headed into the Chapman car. The company also procured from Chapman, on February 4, 1925, a signed statement to the effect that, although the indemnity company disclaimed liability, it was to investigate and defend against the claim with the understanding that it reserved the right to be liable only for the risks assumed by its policy, to which reservations Chapman agreed in the writing. On February 16, 1925, counsel for the company sent Chapman a registered letter, directed to him at the residence he gave in Toledo, and reminding him of the pendency of the action. This letter contains the following statement: “The issue has been made up in the case, and is liable to come on for trial most any day, and up to the present time we have had no assistance from you. If you will take your policy and examine it, you will see that you agreed to assist the Great American in making any defense, in gathering the testimony and making preparations for the trial, and assisting us at the trial in the trial of the case. “I say, so far you have given us no assistance whatever, and this letter is to notify you that you must come to Mansfield at once, so we can have a conference with you, and to know what witnesses you want at the trial, and otherwise help us to get ready to make, the defense. ’ ’ Chapman made no response to this letter. On *212 March. 30, 1925, counsel sent him another registered letter, in which the following language occurs: “You did not comply with my request and up to date you have not given us any assistance in the preparation of this case. “The case is set down for trial and will be tried on Thursday, of this week, April 2d, at 9 o’clock a. m., at the courthouse in the court of common pleas of Huron county. I shall be present and make what defense I can. I will be in Norwalk on Wednesday evening at 7:30 in the office of Edgar Cr. Martin, prosecuting attorney of Huron county, and you ought to meet me at the office and let us have the benefit of your evidence and your assistance the next day in the trial of the case. “This is the last notice I shall give you with regard to the trial of said cause.” Chapman made no response to this communication, and was not present at the trial, which commenced on April 2,1925. His excuse is that he had left Toledo and located in Lorain, and did not receive the letters until too late to attend the trial, but he had not given the company any notice of his change of address, and a receipt for the registered letters had been returned to the company, signed by his representative. Chapman was not present at the trial of the instant case, but the decision of the case was delayed, and his deposition was taken. The company apparently had not been able to find him, but the plaintiff ascertained that he was in Florida, and was advised of his return to Norwalk, and the plaintiff took his deposition, and it was introduced in evidence. In that deposition Chapman states that he *213 never notified the insurance company that he had been sued by Rohlf, although he knew that the policy required that he should do so, and he further stated that he thought Rohlf should be paid. In the deposition he was asked this question, referring to Rohlf: “Q. As long as he can’t get it from you, you think he ought to get it from the insurance company, don’t you? A. Well, I think so.” He further testified as follows: “Q. Did you tell one'of their investigators that you would keep the office in -touch as to where you were, so they could get you at any time? Did you say that to one of the men? A. Yes, sir. “Q. You didn’t do it, did you? A. No. “Q. And, after you got this notice of the trial, you never told them that you got the message, or where you were, or anything, did you? A. No, sir. “Q. You never co-operated, have you — outside of notifying them of the accident? A. No, sir. “Q. You.had told them that you would let them know where you were all the time, and where they could get you if they wanted you, didn’t you? A. Yes. “Q. You didn’t tell the insurance company where you were, did you? A. No, sir. “Q. Yet you had promised you would, to the man? A. No, sir.” This last answer is so plainly inconsistent with numerous statements made by the witness that it is either a clerical error or a willful misstatement. Later on in the deposition he was asked this question: *214 “Q. And Mr. Young is your attorney, and lie was Mr. Rohlf’s attorney! A. Yes, sir. “Q. You say Mr. Young was your attorney, in your last case! A. Yes, sir.” The trial judge, on request, made a special finding of facts, which includes the following finding: “The court further finds that the defendant A. C. Chapman did not co-operate with or assist the defendant corporation in securing information and evidence regarding the claim of the plaintiff against him, or in the attendance of witnesses or in the attendance of defendant Chapman himself at said trial; that he did not notify the defendant company of the pendency of plaintiff’s suit against him, nor did he at any time advise the defendant company of his post office address or place of residence, and that the same was changing frequently, and that letters addressed to him by said company were not answered by him, nor did he conform to any of the requests made in such letters that he go to Mansfield to confer with said company regarding said claim or appear at the trial of said law suit, although it does not appear that he received actual notice of the date of such trial, owing to the fact that he had changed his address, and the letter of notice from the defendant company to him did not reach him until after such trial had been had. ’ ’ We think the finding of the trial court is sustained by the overwhelming weight of the evidence. Indeed, it is impossible to' read the record in this case without finding that there was deliberate and premeditated evasion on the part of Chapman of the duties he owed to the company to co-'operate in the defense, as required by the provisions of the policy. *215 The evidence points very strongly to collusion between Chapman and his friend Rohlf to enable Rohlf to collect the amount of the claim from the indemnity company. We may concede that the company did not have the right to require him to come to Mansfield from Toledo, but it did have the right to his assistance and co-operation. If the accident happened under the circumstances stated by Chapman when interviewed in Toledo, there was a perfect defense to the claim made by Rohlf.. It is said that the company ought not to have proceeded to trial, in the absence of Chapman, but there is no assurance that an attempt at a continuance of the case would have been successful. At most, the failure to attempt to secure a continuance was an error of judgment, and does not evince in any way bad faith on the'part of the company. On the other hand, the evidence shows bad faith on the part of Chapman in failing to co-operate, as he had agreed, and in thus wrongfully attempting to shoulder the liability on the company. We find nothing in the case showing a waiver or estoppel to make this defense. Certainly the liability assumed by the company is limited by the terms of its policy, and Rohlf can have no greater right than Chapman himself had. The case must be determined against the plaintiff, because the assured is clearly shown to have violated the provisions of the policy requiring him to co-operate and assist in the defense. Schoenfeld v. New Jersey Fidelity & Plate Glass Ins. Co., 203 App. Div., 796, 197 N. Y. S., 606; Coleman v. New Amsterdam Casualty Co., 126 Misc. Rep., 380, 213 N. Y. S., 522; United States Fidelity & Guaranty *216 Co. v. Williams, 148 Md., 289, 129 A., 660; Bassi v. Bassi, 165 Minn., 100, 205 N. W., 947; Oakland Motor Co. v. American Fidelity Co., 190 Mich., 74, 155 N. W., 729. The petition in error and the brief complain only of the rendition of the judgment in favor of the Great American Mutual Indemnity Company. For the reasons given, the judgment must be affirmed. Judgment affirmed. Lloyd, J., concurs.