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

Under the view of the law of this case as stated in the foregoing opinion, with which statement of the law I am in full accord, complainant's right of recovery is limited to the right of the insured to so recover, and all defenses applicable as to Nausbaum are equally applicable in the instant case. In connection with the defense of suit one of the stipulations of the policy was that "the assured shall at all times render the corporation all co-operation and assistance in his power." When sued at law for damages it requires no discussion to show the presence of defendant at the trial of his cause is highly important for, as said in Schoenfeld v. N.J. F. P. Co.,203 App. Div. 796, 197 N.Y. S. 606: "To enable the company to defend the action, it was manifestly essential that the assured be present and be examined in his own behalf as a witness upon the trial. This, by reason of his disappearance, was impossible." That authority, in my opinion, is directly in point and is entirely sound.

We do not reach any question of expense of return trip. There was no response by the insured whatever to the letters demanding his presence at the trial, and therefore no negotiations possible as to expense.

I am of the opinion a failure to co-operate and comply with this condition of the policy is established by the uncontroverted proof that the insured entirely ignored such request.

I therefore respectfully dissent.