Barclay v. London Guarantee & Acc. Co.

Citation105 P. 865, 46 Colo. 558
Case DateDecember 06, 1909
CourtSupreme Court of Colorado

105 P. 865

46 Colo. 558

BARCLAY et al.
v.
LONDON GUARANTEE & Accident Co., Limited.

Supreme Court of Colorado

December 6, 1909


Casemaker Note: Portions of this opinion were specifically rejected by a later court in 105 P.3d 639

Error to District Court, City and County of Denver; John I. Mullins, Judge.

Action by James William Barclay and another against the London Guarantee & Accident Company, Limited. Judgment in favor of defendant, and plaintiffs bring error. Affirmed.

[46 Colo. 559] Hugh Butler, for plaintiffs in error.

Chas. W. Waterman, for defendant in error.

WHITE, J.

The plaintiffs in error were trustees for the owners, and in possession, of the Windsor Hotel in the city of Denver. The building was supplied with an elevator to carry passengers from one floor to another. May 9, 1896, the defendant in error, for a valuable consideration, issued and delivered to the plaintiffs a certain policy of casualty insurance, insuring them against all liability for damages not exceeding a designated sum 'on account of fatal or nonfatal injuries sustained by any person or persons, other than the assured, in the elevator, or in the elevator well or hatchway, or while entering upon or alighting from the car connected with the elevator.' The policy was made 'subject to the agreements and conditions indorsed hereon under which this policy is issued and accepted,' among which were the following, to wit: 'Upon the occurrence of an accidnet, and also upon receipt of notice of any claim on account of an accident, the assured shall give immediate notice in writing of such accident or claim, with the fullest information available, to the general [46 Colo. 560] manager of the company for the United States of America, in the city of Chicago, Illinois, or to the agent, if any, provided he is still acting for the company, who shall have countersigned this policy. The assured shall, from time to time, and at all times, furnish such additional information in relation to the accident as the company may require. * * * The terms and conditions of this policy cannot be altered or waived by agent, and no alteration shall be valid unless indorsed upon the policy by the general manager of the company for the United States of America.' March 12, 1897, while the policy was still in force, one Eva L. Smails, a guest of the hotel, was injured in the elevator. The plaintiffs were residents of London, England, and it appears one Gilmore was their general agent in Denver, but at the time of the injury one Wiggin was the active and immediate manager of the hotel. Within 10 or 15 minutes after the accident Wiggin was advised thereof, and had a conversation with the injured person, who did not, however, at that time, make a claim for damages on account of the accident, but rather took the blame therefor upon herself. Wiggin saw the injured person every day, and within two weeks or a month was advised that she intended to claim damages for the injury. He immediately notified Gilmore of such claim, having also notified him of the accident at the time it happened.

Neither plaintiffs nor their agents at any time gave notice in writing of the accident to the defendant at Chicago, or to Thomas F. Daly, the agent who countersigned the policy; [105 P. 866] nor was any written notice given either to the defendant or to Daly of the claim for damages. June 12th following the accident some one from the hotel telephoned to the office of Daly to the effect [46 Colo. 561] that the accident or injury had occurred. Daly thereupon visited the hotel, and, after some conversation as to the facts of the accident, notified the manager of the hotel that 'the notice was late and the company would not accept liability at that time.' An attorney, at the request of Daly, on said date, or very soon thereafter, took written statements of the manager of the hotel and others as to the accident. Daly thereafter, in July, had some conversation with Mr. Gilmore about the accident, and on the 30th of that month wrote the plaintiffs that the notice of the accident could not be accepted, 'as the conditions of the policy were entirely ignored and the notice not sent in for nearly three months after the occurrence of the accident.' The plaintiffs explained that they were led to believe, by the statements of the party injured to the manager of the hotel, that the trustees were in no wise to blame for the accident, and that 'there would be no claim for damages, and, of course, no suit.' Mrs. Smails, however, within two weeks or a month claimed damages, notified plaintiffs, and on September 17, 1896, instituted suit against the plaintiffs here, and recovered judgment for damages on account of the injury sustained by her in said accident. Upon the commencement of that suit, the defendant here was notified and requested to take charge and defend, which it had a right to do under the terms of said policy, but declined so to do, though some negotiations were had relative to an arrangement by which it could defend without waiving any of its rights to deny liability under the policy of insurance. The judgment for damages was against Barclay only; his co-trustee not having been served with process. Each of said trustees, however, paid one-half of the judgment, and thereafter instituted this suit to recover the sum designated in the policy, [46 Colo. 562] which was less than the amount of the judgment paid. The trial was to the court without a jury, resulting in a judgment for the defendant, from which this suit is prosecuted.

The defendant contends that the express language of the policy requires immediate written notice to be given it whenever any accident occurrs within the terms of the policy, and another such notice whenever a claim is made for damages based upon injuries sustained in such accident; that plaintiffs having failed to give the required notices, or either of them, the defendant is released and exonerated from liability under the policy. The plaintiffs, however, in argument assert that a reasonable construction of the policy did not require the giving of notice or notices, unless the circumstances of the accident suggested that some claim for damages might be made against them; that so long as they did not apprehend, or have reason to apprehend, that such claim would be made, it was not necessary to notify the defendant; and that, as...

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31 practice notes
  • Houran v. Preferred Acc. Ins. Co. of New York, No. 109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1937
    ...234; Clements v. Preferred Accident Ins. Co. of N. Y. (C.C.A.) 41 F. (2d) 470, 76 A.L.R. 17, 21; Barclay v. London Guarantee, etc., Co., 46 Colo. 558, 105 P. 865, 867, 868; Schriver v. Mayor, etc., of Cumberland, 169 Md. 286, 181 A. 436, 443; and cases cited annotations, 76 A.L.R. 216 Wheth......
  • Mabee v. Continental Casualty Co.
    • United States
    • United States State Supreme Court of Idaho
    • August 4, 1923
    ...as to a waiver, as no waiver was pleaded. ( McLeod v. Travelers' Ins. Co., 8 Ga.App. 765, 70 S.E. 175; Barclay v. London Guarantee Co., 46 Colo. 558, 105 P. 865; Cranston v. West Coast Life Ins. Co., 63 Ore. 427, 128 P. 427; Snell v. North British & Mercantile, 61 Mont. 547, 203 P. 521; Ste......
  • Marez v. Dairyland Ins. Co., No. 79SC267
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1981
    ...We affirm the court of appeals. I. We adhere to the fundamental concept enunciated in the landmark case of Barclay v. London Co., 46 Colo. 558, 105 P. 865 (1909), that the rights and duties flowing from an accident insurance policy are contractual in nature and are measured by the terms and......
  • Friedland v. Travelers Indem. Co., No. 03SC681.
    • United States
    • Colorado Supreme Court of Colorado
    • January 31, 2005
    ...at 228. Thus, in Clementi, we departed from our early Twentieth Century case, Barclay v. The London Guarantee and Accident Company, Ltd., 46 Colo. 558, 105 P. 865 (1909), that formulated the traditional approach we continued to apply in Marez. Because of its reasoning and departure from the......
  • Request a trial to view additional results
31 cases
  • Houran v. Preferred Acc. Ins. Co. of New York, No. 109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1937
    ...234; Clements v. Preferred Accident Ins. Co. of N. Y. (C.C.A.) 41 F. (2d) 470, 76 A.L.R. 17, 21; Barclay v. London Guarantee, etc., Co., 46 Colo. 558, 105 P. 865, 867, 868; Schriver v. Mayor, etc., of Cumberland, 169 Md. 286, 181 A. 436, 443; and cases cited annotations, 76 A.L.R. 216 Wheth......
  • Mabee v. Continental Casualty Co.
    • United States
    • United States State Supreme Court of Idaho
    • August 4, 1923
    ...as to a waiver, as no waiver was pleaded. ( McLeod v. Travelers' Ins. Co., 8 Ga.App. 765, 70 S.E. 175; Barclay v. London Guarantee Co., 46 Colo. 558, 105 P. 865; Cranston v. West Coast Life Ins. Co., 63 Ore. 427, 128 P. 427; Snell v. North British & Mercantile, 61 Mont. 547, 203 P. 521; Ste......
  • Marez v. Dairyland Ins. Co., No. 79SC267
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1981
    ...We affirm the court of appeals. I. We adhere to the fundamental concept enunciated in the landmark case of Barclay v. London Co., 46 Colo. 558, 105 P. 865 (1909), that the rights and duties flowing from an accident insurance policy are contractual in nature and are measured by the terms and......
  • Friedland v. Travelers Indem. Co., No. 03SC681.
    • United States
    • Colorado Supreme Court of Colorado
    • January 31, 2005
    ...at 228. Thus, in Clementi, we departed from our early Twentieth Century case, Barclay v. The London Guarantee and Accident Company, Ltd., 46 Colo. 558, 105 P. 865 (1909), that formulated the traditional approach we continued to apply in Marez. Because of its reasoning and departure from the......
  • Request a trial to view additional results

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