Ward v. Md. Cas. Co.

• Decision Date: 07 March 1902
• Citation: 71 N.H. 262,51 A. 900
• Parties: WARD et al. v. MARYLAND CASUALTY CO.
• Court: New Hampshire Supreme Court

51 A. 900

71 N.H. 262

WARD et al.

v. MARYLAND CASUALTY CO.

Supreme Court of New Hampshire. Grafton.

March 7, 1902.

Exceptions from Grafton county.

Action by Ward & Douglass against the Maryland Casualty Company. There was a finding for plaintiffs, and defendant excepts. Exception overruled nisi.

By the policy the defendants agreed to indemnify the plaintiffs against loss from common-law or statutory liability for damages on account of bodily injuries accidentally suffered by the plaintiffs' employés, and caused by the plaintiffs' negligence, subject to the following, among other, conditions, "which are to be construed as conditions precedent of this contract: (1) The assured, upon the occurrence of an accident shall give immediate notice thereof in writing, with full particulars, to the home office of the company at Baltimore, Md., or to its duly authorized agent. He shall give like notices, with full particulars of any claim which may be made on account of such accident. (2) If thereafter any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, immediate notice thereof shall be given to the company, and the company will defend against such proceeding in the name and on behalf of the assured, or settle the same at its own cost unless it shall elect to pay the assured the indemnity" provided for in another clause of the policy. (3) "The assured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation for settlement, or in any legal proceeding, without the consent of the company previously given in writing; but he may provide at the time of the accident such immediate surgical relief as is imperative. The assured, when requested by the company, shall aid in securing information and evidence, and in effecting settlements, and, in case the company calls for the attendance of any employé or employés as witnesses at inquests and in suits, the assured will secure his or their attendance, making no charge for his or their loss of time." The policy was not to he binding "unless countersigned by a duly authorized representative of the company." It was countersigned at Montpelier, Vt., by "J. G. Brown, Agent." The resident managers of the defendants at Boston issued a notice to persons insured as follows': "The delay incident to the sending of notices in the ordinary way often results in our not being able to promptly investigate them. We desire to save you the annoyance of vexatious lawsuits and to make speedy settlements of claims made against you by your employés and others. This We can only do satisfactorily by being able to investigate an accident while the facts are fresh in the memory of the witnesses, and before the conditions under which the accident happened have changed. We wish, therefore, that you would instruct your superintendents and foremen, immediately on the happening of an accident, to notify us on the blanks inclosed with the policy, and telephone or telegraph our attorneys, Dickson & Khowles,—telephone number 3150, Boston,—at their expense, and they will at once send a person to make an investigation. We desire this so that we can give you the most absolute protection under our policy." Patrick O'Connell, an employé of the plaintiffs, jumped from a building which they were taking down, and was injured, May 19, 1899. On the same day, J. G. Brown, above mentioned, sent a letter to the defendants' resident managers at Boston, saying: "A man at work for Ward & Douglass in some way jumped off the third story of the building that they were tearing down, and struck on a pile of brick, and injured him to some extent, and he is now at the hospital. * * * I cannot tell you just now what made him, but understand that one story is that he made a misstep and jumped to save himself from falling; and another story is that he thought that a timber was going to fall on him, and in some way in getting out of the way of it got so near as to require him to jump to prevent falling. I have no blanks to report this, so give you this notice, and will have blank filled out as soon as received." The defendants' counsel, by a letter dated May 22d, addressed to the plaintiffs, acknowledged the receipt of "a letter from the insurance agent, Jos. G. Brown, informing us that a man in your employ was injured," etc., and inclosed a blank report, with a request that the plaintiffs would fill it out, and sign and return it at once. The plaintiffs filled out, signed, and returned the blank. It was dated May 22d, and the defendants' counsel, under date of May 24th, acknowledged its receipt. To the question in the blank, "How did the accident happen (Give full details, describing machinery, tools, staging, etc., in connection therewith. If possible give rough sketch)?" the answer was, "Lost his balance on the side of building, and jumped off onto pile of brick below." To other questions they made answers to the effect that the accident was not due to want of ordinary care on the part of the injured person, or of any other person. In the counsel's letter of May 24th, acknowledging the receipt of the report, they say: "The facts as set forth in the report are not sufficiently full to enable us to obtain a very clear idea as to the exact cause of the accident. Can you throw any additional light on this? From the letter that we received from Mr. Brown * * * it would appear that possibly the cause of O'Connell's jumping was that he thought that something was going to fall on him, and he jumped to get out of the way. Kindly give us any additional information that you may have which would throw light upon this point." The plaintiffs not replying to this letter, the counsel wrote them again, under date of June 13th, calling attention to the delay, and asking them to give the matter their attention. The plaintiffs replied, June 17th, as follows: "Replying to your communication, would say that Mr. O'Connell jumped from building thinking some timbers were to strike him. He is still in the hospital here at Montpelier, and his recovery is still in doubt." In a letter dated June 27th, the counsel acknowledged the receipt of this letter, and said: "We are not yet in possession of enough particulars to enable us to form a very accurate opinion as to just how the accident happened, or to pass upon the question of your liability. * * * Do you know whether or not any timbers actually fell, or, if it appeared that timbers were to fall, what was the reason of their so doing, and if the circumstances justified O'Connell in doing as he did? It is probable that there were other workmen present at the time who could throw light on this matter, and we wish you would get from them an accurate statement as to just what occurred immediately before and at the time that O'Connell jumped." The plaintiffs made no reply to this letter. O'Connell began an action against the plaintiffs to recover damages for his injuries July 2, 1900. The writ was served upon one of the plaintiffs on August 2d, and upon the other on August 22d, and was returnable at the term of the supreme court for Grafton county which began September 18th. In a letter to the defendants' counsel, dated August 20th, the plaintiffs said: "Patrick O'Connell has sued us in the sum of $5,000 for the accident that he met with here. Do you wish us to make any move toward a settlement of the matter with him?" September 17th, the plaintiffs telegraphed the counsel that the O'Connell suit was in the Grafton county court, which would open the next day. September 19th, the plaintiffs wrote the counsel, saying that the suit must receive immediate attention, requesting them to telegraph on receipt of the letter whether they were going to attend to the suit, and saying that if they did not the plaintiffs would have to hire attorneys.

The counsel replied by telegram on September 20th: "You must protect yourselves through attorney in O'Connell suit until we get authority from insurance company to defend you. New Hampshire court probably has no jurisdiction over you. Your attorney should take advantage of that fact." Under date of September 21st, they wrote the plaintiffs as follows: "For the purpose merely of ascertaining how you happened to be sued in New Hampshire, and whether that court has any jurisdiction over you in the case...