Baldwin v. Fidelity Phenix Fire Insurance Co. of NY

• Citation: 260 F.2d 951
• Decision Date: 10 November 1958
• Docket Number: No. 13406.,13406.
• Parties: Herman BALDWIN and Tom Goff, Appellants, v. FIDELITY PHENIX FIRE INSURANCE COMPANY OF NEW YORK, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

260 F.2d 951 (1958)

Herman BALDWIN and Tom Goff, Appellants, v. FIDELITY PHENIX FIRE INSURANCE COMPANY OF NEW YORK, a Corporation, Appellee.

No. 13406.

United States Court of Appeals Sixth Circuit.

November 10, 1958.

COPYRIGHT MATERIAL OMITTED

Henry D. Stratton and F. Dale Burke, Pikeville, Ky., for appellants.

William J. Baird, Pikeville, Ky. (Baird & Hays, Pikeville, Ky., on the brief), for appellee.

Before ALLEN, Chief Judge, and MARTIN and MILLER, Circuit Judges.

ALLEN, Chief Judge.

This is an appeal from a judgment entered upon a verdict directed in favor of appellee in an action upon an automobile liability insurance policy.

Appellee, on October 22, 1952, had issued its automobile liability policy to John J. Cooper, a member of the United States Air Force. The policy, in addition to providing for compensation for personal injuries and property damage and contracting on the part of appellee to defend suits arising out of automobile accidents filed against the insured, required, as a prerequisite of liability, notice of any accident as soon as practicable, and required insured to forward notice of claims or suits filed against him and to cooperate fully in defense of any such claim or suit.

Separate actions previously filed in the state court by appellants, who were injured in an automobile collision with insured's car, claiming damages for personal injury and property damage, were defended neither by the insured nor by appellee. Substantial verdicts and judgments were rendered against the insured in the state court in favor of appellants, who seek in the instant action to subject the proceeds of the policy issued to insured by appellee prior to and in force at the time of the collision, to payment of part of the liability.

The policy provided that "When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable." In answers to interrogatories the jury found that notice of the accident was mailed, but was not received by appellee. The principal question presented is whether the judge erred in charging the jury in effect that if notice of the accident insured against was mailed to appellee but not received, the verdict should be returned in favor of appellee. It is argued that, because the policy in other clauses calls for notice by mailing and in additional clauses provides for notice but does not expressly require receipt of such notice, the United States postal service was adopted as the agent for service and all notices were effective when mailed.

There is a presumption recognized by certain authorities that mail delivered to the United States postal service is duly received. Whitmore v. Dwelling House Insurance Company, 148 Pa. 405, 23 A. 1131. However, this presumption is rebuttable. McSparran v. Southern Mutual Insurance Company, 193 Pa. 184, 44 A. 317. The evidence here showed that nonregistered letters were mailed giving notice of the time and place of the accident, addressed to the insured, to appellee, and to one Edward William Wallace, of Ventura, California, an issuing agent for appellee. Neither street address nor post office box number was shown on the copies of the letters introduced in evidence. Wallace testified in deposition that he received no notice of the accident. The finding of the jury that the notice was not received is thus sustained by the evidence.

We cannot agree with appellants' contention that the notice is effective if mailed but not received. Notice by mail may have been, and doubtless was, contemplated under the policy, although personal notice of the happening of an accident was not excluded. However, the term "written notice shall be given" carries with it the implication of receipt or delivery. As pointed out in Rapid Motor Lines, Inc., v. Cox, 134 Conn. 235, 56 A.2d 519, 521, 175 A.L.R. 296, "One meaning of the verb `give' is * * * `to deliver or transfer; to * * hand over.'" See Webster's New International Dictionary, Second Edition, definitions of the word "give." As declared in the McSparran case, supra, 193 Pa. 191, 44 A. 318, "Notice is knowledge or information legally equivalent to knowledge, brought home to the party notified in immediate connection with the subject to which the notice relates. It is not, therefore the sending, but the receipt, of a letter that will constitute notice * * *." Cf. 66 C.J.S. Notice § 18, p. 663.

The instant action was brought by judgment creditors of the assured who had secured judgments by default in the state court in actions not defended by the insurance company. The rights of the judgment creditors were no greater than the rights of the assured. Sheldon v. Bennett, 282 Mass....