Alexander v. STANDARD ACC. INS. CO., DETROIT, MICH.
| Decision Date | 10 October 1941 |
| Docket Number | No. 2306.,2306. |
| Citation | 122 F.2d 995 |
| Parties | ALEXANDER v. STANDARD ACC. INS. CO., DETROIT, MICH. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Luther Bohanon, of Oklahoma City, Okl. (Bohanon & Adams and Bert B. Barefoot, Jr., all of Oklahoma City, Okl., on the brief), for appellant.
R. D. Hudson, of Tulsa, Okl. (Ned Looney and Clyde J. Watts, both of Oklahoma City, Okl., on the brief), for appellee.
Before BRATTON, HUXMAN, and WILLIAMS, Circuit Judges.
Standard Accident Insurance Company1 executed a public liability policy of insurance with E. W. Jones, Inc.,2 agreeing to indemnify it for damage arising out of any accident in the operation of its business of drilling, developing and producing oil and gas wells. Hugh Alexander3 suffered an injury December 6, 1937, while working for the Company. June 5, 1939, he filed suit for damages against the Company in the state courts of Oklahoma. The summons and a copy of the petition were delivered to Standard by the Company, with the request that it defend the suit. Standard refused to defend on the ground that there was no liability because the Company had failed to serve it with notice of the accident as required by the policy. Appellant obtained a judgment against the Company for $20,000. Execution issued thereon and was returned with the notation: "No property found." Garnishment proceedings were thereupon instituted against Standard in the state courts of Oklahoma, as provided by state law. These proceedings were removed to the United States District Court for the Eastern District of Oklahoma where a trial was had to a jury. At the close of Plaintiff's case, the court directed a verdict for Standard.
The policy provides that:
To establish a cause of action, it was necessary for plaintiff to prove that this provision of the policy had been complied with. No direct evidence was adduced showing that written notice was given to Standard. Plaintiff's position seems to be that the evidence established that some kind of notice, "either oral, direct or indirect", was given, and that, if oral, Standard waived the provision of the policy requiring that written notice be given. The testimony upon which plaintiff relies to establish notice is as follows:
Charles Christianson testified that he was employed by the R. H. Siegfried Company which represented Standard; that the R. H. Siegfried Company was a general agent of Standard; and that he had charge of the claim department dealing with the investigation and payment of claims.
At the time appellant was injured, he was living at the home of his father, Harry Alexander. After the injury he spent approximately ten days or two weeks in a hospital, when he was taken back to his father's home. Harry Alexander, the father of appellant, testified that a day or two after appellant returned home a man came to his house and talked to him; he said he was an insurance adjustor; he did not remember his name. The next time he saw him was at the trial of appellant against the Company in the state court; he identified Christianson in the courtroom as the man who came to his house that day; Christianson asked how the accident happened and asked who was present at the time appellant was injured, and he told him.
Truman Ring testified that he was one of the roustabouts working on the lease at the time appellant received his injury; that he talked to a man after the accident occurred who said he was a representative of the insurance company which carried the insurance for the company; that his name was "Christian or Christensen or Christmas, or something like that."
George Dodson testified that he was working for the company on the day the accident occurred; that after the accident and after appellant had been returned home from the hospital, he was approached by an adjustor; that he did not remember his name; that the adjustor asked him about the accident in which appellant was injured; that it was about eight or nine days after the accident occurred that he had this conversation with the adjustor.
Appellant testified that after he got home he saw an insurance adjustor for an insurance company, who asked about the accident, and he told him.
Charles Pittinger testified that he was employed by E. W. Jones, Inc., on the day appellant was injured; that he reported the occurrence to H. B. Jones, his superior officer; that he also talked to E. W. Jones, president of the company, and told him about the accident.
Appellant offers no positive, direct evidence that...
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