General Accident Fire & Life Assur. Corp. v. Dickinson

• Decision Date: 04 June 1945
• Docket Number: Civil Action No. 4287.
• Citation: 61 F. Supp. 153
• Court: U.S. District Court — Northern District of California
• Parties: GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited, v. DICKINSON et al. DICKINSON et al. v. GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

61 F. Supp. 153

GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, Limited, v. DICKINSON et al.

DICKINSON et al. v. GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

Civil Action No. 4287.

District Court, N. D. California, N. D.

June 4, 1945.

Van Dyke & Harris, of Sacramento, Cal., for plaintiff.

J. Oscar Goldstein, of Chico, Cal., Erling S. Norby, of Marysville, Cal., and Geis & Hogle, of Willows, Cal., for defendants.

WELSH, District Judge.

Declaratory relief was sought by plaintiff with reference to its rights and legal relations with respect to a policy of automobile insurance wherein defendant, L. K. Fereva, doing business as Fereva Chevrolet Company, was named insured. Defendants, Charles Gromer Dickinson, Doris May Dickinson and William Kemp, were named as such by reason of injuries received in an automobile accident involving the automobile tow truck covered by said policy.

A jury rendered verdicts in favor of the defendants. Counsel for all parties conducted the cause upon the theory that, on account of the equitable origin of estoppel, which was raised in connection with waiver, the jury's verdicts were advisory. The Court, in view thereof, determined not to follow such advisory verdicts and made findings and entered judgment in favor of plaintiff.

An appeal was taken wherein the Circuit Court of Appeals decided that the action was purely at law, that the verdicts were binding on the Court, and that judgment thereupon should be entered. 9 Cir., 147 F.2d 396. Such judgment was entered accordingly.

Plaintiff thereafter made a motion for a new trial, which was exhaustively argued and briefed. This Court is now placed in the position of determining whether or not the verdicts were supported by the evidence and whether plaintiff is entitled to a new trial upon any of the grounds set forth in its notice of motion pursuant to Section 657 of the California Code of Civil Procedure.

Plaintiff's arguments are based mainly upon insufficiency of the evidence and errors in law occurring at the trial.

Findings herein were filed on the 24th day of September, 1942. Finding 14 reads in part: "in said policy of insurance hereinabove referred to as Exhibit `A', it was provided in condition number 7 thereof as follows: `Notice of Accident — Claim or Suit. Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the corporation or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'"

With respect to this requirement of written notice, said Finding 14 also specified: "that upon the occurrence of the accident referred to herein, namely on February 25, 1940, written notice was not given by said L. K. Fereva, the assured under said policy of insurance, or on behalf of said insured, to the plaintiff or any of its authorized agents as soon as practicable; that no notice whatever was given to plaintiff prior to April 26, 1940."

So far as notice of any kind to plaintiff, as insurer, was concerned, said Finding 14 shows: "that prior to said April 26, 1940, no notice was given by said L. K. Fereva to plaintiff in writing or otherwise containing particulars sufficient to identify the insured, or reasonably obtainable information respecting the time, place and circumstances of the said accident, the names and addresses of the injured and of available witnesses, or any of the said items."

On the question of waiver and estoppel, said Finding 14 read: "the court further finds that there was no waiver or change made or effected in any part of the said policy of insurance and that the plaintiff is not estopped from asserting its rights herein under the terms of said policy, and that no terms of the said policy are or have been waived or changed by any course of conduct pursued by the plaintiff herein."

This Court, having so found at the conclusion of the trial, when the evidence was freshly in mind, is constrained to decide now that plaintiff is entitled to a new trial.

After hearing the evidence, observing the witnesses on the stand, and being fully advised in the premises, this Court not only determined not to render a judgment pursuant to the verdicts of the jury, but, subsequently, on further consideration, denied the motion of defendants for a new trial. It thereby held that the verdicts were not supported by the evidence. It still is persuaded that the evidence preponderated in favor of plaintiff.

The learned Judge Curtis D. Wilbur in his concurring opinion in Dickinson v. General Accident F. & L. Assur. Corp., 9 Cir., 147 F.2d 396, 398, recognized "it was admitted that no timely written notice was given." It was, therefore, not a compliance with the terms of the insurance contract. The evidence by which defendants sought to establish a waiver of the requirement of notice was neither impressive nor satisfactory.

Certain testimony was admitted over objection during the trial. Inasmuch as the Court concluded not to accept the verdicts of the jury, it has not heretofore been necessary to comment on such rulings.

In view of the fact that the Circuit Court of Appeals ordered this Court to enter judgment pursuant to the verdicts, this Court has re-examined the transcript and given consideration to the points urged by plaintiff in connection with the admission of said testimony, which has to do mainly with alleged conversations of Mr. and Mrs. Fereva purporting to relate to reporting the happening of the accident to plaintiff. No authorized representative of plaintiff insurance company was present at such conversations.

The Court is not satisfied that the claimed notification of the accident to Mr. Urquhart was sufficient even if written notice had been waived. The alleged conversation was at best indefinite and inadequate so far as conveying to the plaintiff company any information on which it could base an investigation. None of the particulars of the accident were purported to have been given. No mention was made of time, place, circumstances or parties involved in the accident, or witnesses thereto.

The policy required that particulars of the accident be given. Nothing less than the giving thereof would satisfy the terms of the policy. Standard Life & Accident Ins. Co. v. Strong, 13 Ind.App. 315, 41 N.E. 604; Stephenson v. Bankers' Life Ass'n, 108 Iowa 637, 79 N.W. 459.

Mr. Fereva's own statement as to what he said to Mr. Urquhart was (Vol. III, Reporter's Transc., p. 159, line 19, to p. 160, line 3):

"A. Why, when I went out to meet Mr. Urquhart, why, we passed the time of day; then I said, `Bob, I want to report a little crackup I had down the highway the other morning with my tow car.' I said, `I was called out in the morning to go out to pull a car out of the ditch, and while I was towing the car out of the ditch another car ran into the car we were towing out. There were several people i...