C. S. Brackett & Co. v. Gen. Accident, Fire & Life Assur. Corp.

• Decision Date: 31 May 1918
• Docket Number: No. 20842.,20842.
• Citation: 167 N.W. 798,140 Minn. 271
• Parties: C. S. BRACKETT & CO. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP. Limited.
• Court: Minnesota Supreme Court

140 Minn. 271

167 N.W. 798

C. S. BRACKETT & CO.

v.GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP. Limited.

No. 20842.

Supreme Court of Minnesota.

May 31, 1918.

Appeal from District Court, Hennepin County; John H. Steele, Judge.

Action by C. S. Brackett & Co. against the General Accident, Fire & Life Assurance Corporation, Limited. From a judgment for plaintiff, and the denial of a motion for judgment notwithstanding the verdict, or in the alternative a new trial, defendant appeals. Affirmed.

Syllabus by the Court

The evidence was such that it devolved upon the jury, and not the court, to determine whether the written notice of an accident given 35 days after its occurrence was timely under the terms of the accident insurance policy issued by defendant to plaintiff.

The provision in the policy, that no condition therein shall be waived, except by written indorsement signed by a designated officer, does not apply to the conditions to be performed after the occurrence of the loss, or of the event upon which a loss may be predicated. Watson, Sexton & Mordaunt, of Minneapolis (P. J. McLaughlin, of St. Paul, of counsel), for appellant.

Kerr, Fowler, Schmitt & Furber, of Minneapolis, for respondent.

HOLT, J.

Defendant issued an indemnity policy to protect plaintiff against loss arising from accidents in the operation of automobiles used in its business. While this policy was in force, and on February 27, 1914, an automobile so used collided with and injured one Boll while riding a bicycle. Boll sued plaintiff to recover damages; defendant declined to defend. Boll had judgment, which plaintiff paid, and then brought this action to be reimbursed. The trial resulted in a verdict in favor of plaintiff. Defendant appeals from the order denying its motion made in the alternative, for judgment notwithstanding the verdict or a new trial.

There can be no question of plaintiff's right to recover the amount awarded by the verdict, provided such right was not lost because of a failure to give defendant such notice of the accident as the terms of the policy call for. The two provisions bearing upon this issue read:

‘C. The assured, upon the occurrence of an accident, shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation's head office at New York City, or to its duly authorized agent. * * *

‘K. No condition or provision of this policy shall be waived or altered except by written indorsement attached hereto and signed by the United States Manager, or the Assistant United States Manager, nor shall knowledge possessed by any agent or by any other person be held to effect a waiver of or a change in any part of this contract.’

Immediate notice, in contracts of the sort here involved, means notice given within a reasonable time after the occurrence of the event under or on account of which a claim may be made upon the insurer. Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305,65 N. W. 270;Fletcher v. German American Ins. Co., 79 Minn. 337, 82 N. W. 647;Hagstrom v. American Fidelity Co., 137 Minn. 391, 163 N. W. 670. Where the facts are in dispute, it becomes usually a question for the jury whether the notice is timely. In the case last cited, no extenuating circumstances appearing, it was held, as a matter of law, that a delay of 52 days in giving the notice destroyed the right to maintain an action on the policy. In the case at bar written notice did not reach defendant until the thirty-fifth day after the accident; but, we think, the evidence made it a case for the jury to say whether there was a compliance with the provision of the policy.

From the evidence the jury could find that on the day of the accident plaintiff telephoned Marsh & McLennan, the general agents of defendant in Minneapolis, of the occurrence and the details as then known, the communication being with one Preston, the employé of the firm who customarily attended to matters pertaining to the policy in question; that Preston assured plaintiff that the matter would be taken care of by defendant; that Preston also notified one Carley, officing with Marsh & McLennan and employed by the attorneys of defendant to investigate and adjust injuries received in accidents covered by defendant's policies; that within 10 days Carley came to plaintiff's officers and stated that he had located the only eyewitness there was to the accident; that on the thirty-fifth day after the collision Carley again came to plaintiff's place of business, and, upon defendant's blanks, made out a written report of the accident, which, at his request, the driver of the automobile concerned and an officer of plaintiff signed, which report Carley took away, and which defendant received and retained without a suggestion that it was untimely, until more than a month later.

Unquestionably Marsh & McLennan were proper agents to whom notice could be given. Crystal Ice Co. v. United States Ins. Co., 159 Mich. 102, 123 N. W. 619;Lamontagne v. Standard, etc., Ins. Co., 226 Mass. 161, 115 N. E. 244. Notice was received by these agents promptly, and, although not in writing, it was acted on without delay by Preston and Carley, at least the jury could so find. The investigation, the opportunity for which was intended to be secured by the written notice, was had. There is no testimony that the authority of Preston to receive notices of accidents, in behalf of Marsh & McLennan and defendant, and communicate the same to Carley, was in any manner limited, nor that of Carley to investigate the same in defendant's interest. In Fidelity & Casualty Ins. Co. v. Mountcastle, 200 S. W. 862, it was held that the giving of verbal notice was a...