Farm Bureau Mutual Automobile Insurance v. Garlitz

Bond, C. J., delivered the opinion of the Court. The insurer in an automobile liability policy appeals from a judgment rendered in favor of a judgment creditor of the insured, and the single question is whether a change of statement or testimony by the insured on the original trial constituted a lack of the co-operation by him which was made by the policy a condition to liability on it. The insured was Randall Beachey, owner of a truck,. and he became judgment debtor to the administratrix of Broadwater, who was also mother-in-law of the insured, in a suit for damages in the accidental killing of Broadwater by the 'truck. On Saturday, February 3, 1940, Beachey brought a truck load of coal to his home near Cumberland, and left it parked there, ten or twelve feet from the house, until Monday morning.

On that morning Broadwater, who was Mrs. Beachey’s uncle, volunteered to unload the truck, and Beachey started the motor, leaving the emergency brake on, and Broad-water preparing to put water in the radiator. Beachey left for his work a few minutes afterwards. In some manner unknown Broadwater was subsequently crushed between the truck and the house. The ground of re ⁶¹⁷ covery by his administratrix in the original suit was danger from a defective brake. “It isn’t very steep,” Beachey testified, “but it’s a little grade.” An investigator for the insurer, having been notified of the accident, came three days later and took Beachey’s statement of the occurrence in writing.

He wrote it out, and Beachey signed it below a clause reading: “I have read the statement of two pages, know its contents, and it is true to the best of my knowledge.” And in it he said: “I have never had any trouble with the emergency brake, and it works all right how.” Again, nine days later, Beachey gave a supplemental statement, signed after substantially the same assertion that he had read it and that it was true, and in that said: “I never had any trouble with the emergency brake holding while unloading coal on a steep bank. The truck had never drifted away from me before.” Both statements were read to him before the trial, and no correction was suggested. Called as a witness for the plaintiff in that original suit against him, Beachey testified: “You take with that load on, no emergency brake will hold.” The brake had previously flown loose with him he said. “It pretty near caught me over at the mine myself (about two weeks previously) ; I was over at Mr. Bowman’s getting a load of coal and that starter would make a funny noise and wouldn’t take hold for me. I stepped on the starter and it locked and I opened the door, went around to crank, it started and the truck came back and almost caught me.” Again, he said, the truck then drifted backwards toward him.

He conceded that the investigator put down in the written statements what he, Beachey, had said, and his explanations of the contradiction with his testimony differed somewhat,'and finally came to, “I don’t know.” He did not remember the statement made at the first interview with the investigator. He did not at that time remember the happening two weeks previously; the fact came to him later, when he heard there was to be a trial. ⁶¹⁸ He did not think he “was going to get into this mix-up.” Then' asked specifically why' he- had made the earlier statements that the truck had never drifted away from him before, and that he never had any trouble with the