Armour & Co. v. American Auto. Ins. Co.

• Citation: 80 S.W.2d 685,336 Mo. 551
• Parties: Armour & Company, a Corporation, v. American Automobile Insurance Company, a Corporation, Appellant
• Decision Date: 05 March 1935
• Court: Missouri Supreme Court

80 S.W.2d 685

336 Mo. 551

Armour & Company, a Corporation, v. American Automobile Insurance Company, a Corporation, Appellant

Supreme Court of Missouri

March 5, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed.

Bryan Williams, Cave & McPheeters for appellant.

(1) The failure of the plaintiff to give notice to the defendant of the claims made upon plaintiff by the injured party for a period of more than fourteen months after the first claim was made, and for more than eleven months after the second claim was made, was, as a matter of law, a failure to give notice of the claims within a reasonable time. Burnham v. Ins Co., 75 Mo.App. 399; La Force v. Williams City Ins Co., 43 Mo.App. 528; Myers v. Maryland Casualty Co., 123 Mo.App. 686; Columbia Paper Stock Co. v. Fidelity & Cas. Co., 104 Mo.App. 166; Natl. Paper Box Co. v. Aetna Life Ins. Co., 170 Mo.App. 367; St. Louis Architectural Iron Co. v. New Amsterdam Cas. Co., 40 F.2d 348; Finley v. U.S. Casualty Co., 113 Tenn. 592; London Guarantee & Accident Co. v. Sivey, 35 Ind.App. 34; Hagstrom v. Am. Fidelity Co., 137 Minn. 391; McCarthy v. Rendle, 119 N.E. 188; Oakland Motor Car Co. v. Am. Fidelity Co., 155 N.W. 729; Hass v. Am. Fidelity Co., 226 N.Y. 343; Lewis v. Commercial Cas. Co., 28 A. L. R. 1291; Southern Surety Co. v. Heyburn, 234 Conn. 739. (2) The evidence as to the handling of the alleged letter of plaintiff to defendant dated February 4, 1919, is insufficient to prove a constructive delivery of it. Goucher v. Novelty Co., 116 Mo.App. 102; Ward v. Transfer & Storage Co., 119 Mo.App. 88; Hardin Grain Co. v. Railroad Co., 120 Mo.App. 209; Collins v. Hoover, 205 Mo.App. 100; Peirson-Lathrop Grain Co. v. Barker, 223 S.W. 943; Hetherington v. Kemp, 4 Camp. 193. (3) On the undisputed facts the trial court should have declared, as a matter of law, that the notice of the claim made upon the defendant was not made within a reasonable time, instead of submitting the reasonableness of the time as an issue of fact to be determined by the jury. See Points 1 and 2.

Leahy, Saunders & Walther and Lyon Anderson for respondent.

(1) There never was a claim made on behalf of Bruce Smith prior to Mr. Kinsey's letter of February 28, 1925, and defendant was notified of that claim eleven days later, when plaintiff sent Kinsey's letter to defendant on March 11, 1925. Whitby v. Armour & Co., 114 Kan. 445, 219 P. 253; Ideal Fuel Co. v. Industrial Comm., 298 Ill. 463, 131 N.E. 651. (a) Where a policy does not expressly provide for forfeiture for failure to give notice, such failure will not defeat liability under the policy, absent a showing that the insurance company has been prejudiced by the delay. Dezell v. Fidelity & Cas. Co., 176 Mo. 253, 75 S.W. 1102; Allman v. Order of United Com. Trav. of America, 277 Mo. 678, 213 S.W. 429; Walker v. Am. Automobile Ins. Co., 70 S.W.2d 182; Cowell v. Employers Ind. Corp., 326 Mo. 1103, 34 S.W.2d 705; Ash Grove Lime & Portland Cement Co. v. Southern Surety Co., 225 Mo.App. 712, 39 S.W.2d 434; Maryland Cas. Co. v. Robertson, 194 S.W. 1140; Ward v. Maryland Cas. Co., 51 A. 900; Shirley et ux. v. American Automobile Ins. Co., 163 Wash. 136, 300 P. 155; Employers' Liability Assur. Corp. v. Jones County Lbr. Co., 111 Miss. 759; Watson v. Ocean Accident & Guarantee Co., 28 Ariz. 573, 238 P. 338; George v. Aetna Cas. & Surety Co., 121 Neb. 647, 238 N.W. 36; Hope Spoke Co. v. Maryland Cas. Co., 143 S.W. 85; General Acc. Fire & Life Assur. Corp. v. Butlers Ice Cream Factory, Inc., 5 S.W.2d 976; Gifford v. New Amsterdam Cas. Co., 24 N.W. 235. (b) Plaintiff made a case for the jury on the issue of service of notice of claim within a reasonable time. (2) The evidence was sufficient to prove a constructive delivery of the letter dated March 11, 1926.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Suit to recover on an automobile liability insurance policy issued by defendant to plaintiff. Verdict and judgment for plaintiff for $ 9,835.40 from which defendant appealed. The policy insured plaintiff against loss or expense arising from claims for damages growing out of the use of automobiles by plaintiff's employees in its business, and required the defendant to investigate all accidents covered by the policy, to defend suits brought against plaintiff on claims for damages for bodily injuries on account of such accidents and to pay, within the policy limits, any judgment obtained against plaintiff, with costs, etc. There is no dispute as to the amount of the judgment if plaintiff is entitled to recover at all.

The policy contained the following provisions: "This policy is issued by the Company subject to the following conditions, limitations and agreements which are a part of the policy, and to which assured, by the acceptance of this policy agrees:

"3. Upon the occurrence of any loss or accident covered hereunder, the assured shall give immediate written notice to the company at its home office in St. Louis, Mo., or to its authorized agent, with the fullest information obtainable at the time. If a claim is made on account of such accident, the assured shall give like notice thereof immediately after such claim is made, with full particulars. If thereafter any suit is brought against the assured to enforce such claim, the assured shall immediately forward to the company every summons or other process as soon as the same shall have been served. . . .

"Please note condition requiring immediate notice. . . . Mail notice immediately.

"Home Office, Pierce Building,

"St. Louis, Mo." (Italics ours.)

The controversy in this case arises from defendant's contention that the plaintiff failed to comply with the provision which we have italicized.

On February 4, 1919, while the policy was in force, Bruce Smith, a minor, residing with his parents at Steubenville, Ohio, was injured by an automobile driven by one of plaintiff's employees. The accident was within the coverage of the policy. Immediate notice of the accident was given to the insurer and it made a full investigation. About the time the investigation was completed the father of the injured boy, apparently thinking the boy had been as much at fault as the automobile driver, stated to the investigator that "they" did not intend to make any claim for damages or compensation. Both the insurer and the insured then closed their files of the case. Nothing further occurred in connection with the matter until December 13, 1924. On that day the parents of Bruce Smith called upon Harry A. McGinnis, local manager of the Steubenville branch of Armour & Company, and told him that the boy had developed a brain condition causing convulsions and that their doctor had advised an operation; that they estimated the expense would be about $ 1,000; that they could only raise $ 500, and they wanted to know if he thought Armour & Company would help defray the expense. Mr. McGinnis was not in the employ of Armour & Company at the time of this trial. He was called as a witness by defendant, and testified: "When the Smith came to my office in December, 1924, Smith stated that the boy had been hurt, but at the time they didn't think much of it. I would not say that he was then claiming that Armour & Company were at fault at all. He impressed me as seeking a little aid in a friendly way without having to resort to legal action to get it. You can call it charity if you want to; he was seeking assistance. He didn't threaten to go to any lawyer and file a suit at that time. He said they didn't have the $ 1,000 to put up for the operation. I told them I would write to the Casualty Department to see what their attitude was. Smith did not make any mention of a specific amount. The amount of a thousand dollars was mentioned as being the estimated expense in connection with the operation. . . .

"The Smiths did not demand the thousand dollars. All they wanted was an expression, an opinion from me, as to whether Armour & Company would contribute to defray the medical expenses incident to the boy's treatment. They did not state at that time that they had consulted a lawyer. They did not state that they had investigated the facts and found that Armour & Company were liable legally for this boy's injuries."

He said he wrote Armour & Company's Chicago office reporting the interview with Mr. and Mrs. Smith; that according to his recollection the only communication he received from that office was "that the case would be one for the insurance company to handle."

Relative to said interview between the Smiths and McGinnis, Harry Smith, father of Bruce, testified that about 1923 the boy began having epileptic spells and convulsive seizures and that he and his wife were advised to have the boy operated on, which would cost about $ 1,000; that they only had $ 500 and "we decided we would go to Armour's and see if they would pay the balance of the thousand dollars." We told him (McGinnis) that we had so much money and needed so much more, and we felt that if they would help us we would call everything square. He said he would take it up with the Chicago office. I told him that we needed $ 500. I told him that if Armour & Company would pay the $ 500 no suit would be brought against the company." Mrs. Smith's testimony was of like tenor. She said: "I told him what the doctors had told us and we didn't want to bring suit, but they were nice to us at the time of the accident and we thought now they might help us; that we would release them if we would get the help."

Armour & Company did not at the time notify the insurer of the interview between McGinnis and the Smiths. Some time after that interview, but just when does not appear, the Smiths employed an attorney, W. I. Kinsey, who on ...