Day v. Hartford Accident & Indemnity Company
| Decision Date | 26 November 1963 |
| Docket Number | No. 5487.,5487. |
| Citation | 223 F. Supp. 953 |
| Court | U.S. District Court — Northern District of Oklahoma |
| Parties | Otho R. DAY, Plaintiff, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a Corporation, Defendant. |
Jack I. Gaither, Tulsa, Okl., for plaintiff.
A. M. Covington, Covington & Gibbon, Tulsa, Okl., for defendant.
This is an action by Otho R. Day against Hartford Accident & Indemnity Company. Day obtained a Judgment against Jack Wininger, the defendant's insured, in the Superior Court of Creek County, Oklahoma, Drumright Division, on the 17th day of November, 1960, in the sum of $50,000, which is final and unpaid.
There is no material dispute concerning the facts leading up to the accident and the resulting judgment above mentioned.
On Sunday afternoon, August 30, 1959, there was a violent head-on automobile collision between the vehicle driven by Otho R. Day and one driven by Wayne Cornett, a 16-year-old boy. Day's wife was in the automobile with him and was killed in the collision. Day himself was seriously injured. There were three occupants in the Cornett car, Cornett himself, and two young ladies. One of the girls was killed, and Cornett and the other girl were severely injured. Because of his injuries, Cornett remembers nothing about the accident or how it occurred. Traveling in the same direction as the Cornett car was one driven by Jack Wininger and another by Larry Craven. Jack Wininger's car was 250 feet, according to the Patrolman's report, ahead of the Cornett automobile at the time of the collision and the Craven car occupied by Craven and Cary Greenwood was behind the Cornett car, the exact distance not being clear.
The facts show that all these young people had been at a Dairy Queen Snack Bar some distance from Manford, Oklahoma. The Dairy Queen was a favorite gathering place for young people from Manford. It was on the return trip from the Dairy Queen to Manford when the accident occurred.
The facts show that these young people left the Dairy Queen at approximately the same time and between the Dairy Queen and the point of the accident they had been traveling at relatively high speeds and there was some passing between the cars. Prior to the collision young Wininger had passed both of the other automobiles and at the time of the collision was on his right-hand side of the road approximately 250 feet ahead of the point of impact.
C. E. Wininger, the father of Jack Wininger, at the time was a banker in Manford, Oklahoma, and agent for Hartford Accident & Indemnity Company. There was issued to C. E. Wininger, as named insured, a standard family automobile liability policy with $50,000 and $100,000 coverage for personal injury liability. This policy of insurance was issued to C. E. Wininger with the consent of Hartford, which was required inasmuch as he was the company's agent. It is undisputed that C. E. Wininger was at all pertinent times herein the only agent for Hartford in Creek County, Oklahoma, and was the agent authorized by it to receive and transmit notices of accidents in which Hartford's policyholders were involved.
On the date of the accident, C. E. Wininger questioned his son Jack concerning the accident and particularly asked if the boys were racing, and he was advised by his son that they were not. There were rumors around Manford that perhaps the boys were racing. The other witnesses to the accident were also questioned and interviewed, and all denied that there was any racing. On the date of the accident it was investigated by T. E. Hall, a Patrolman for the Oklahoma Highway Patrol. The Patrol report lists Jack Wininger as a witness only, who, according to his report, was 250 feet west of the place of impact. It is admitted that neither C. E. Wininger or Jack Wininger gave actual notice to Hartford of the occurrence.
Soon after the accident, the exact date not being shown by the record, Otho R. Day brought suit in the Superior Court of Creek County, Oklahoma, Drumright Division, against Wayne Cornett only. On June 14, 1960, plaintiff in this case took the deposition of Cary Greenwood. During the course of this deposition, Cary Greenwood testified that the boys had been racing just prior to the accident. After the taking of this deposition, and on June 16, an Amended Petition was filed in the Creek County case, wherein Jack W. Wininger and Larry Craven were made defendants. Summons was served on Jack Wininger on June 17, 1960, and it was forwarded on June 18, 1960, to the insurance carrier, Hartford. Cary Greenwood at the trial of the case in Creek County repudiated the testimony he had given in the deposition and at the trial denied that the drivers of the cars were racing. See: Jack Wininger et al. v. Joe B. Day, Adm. et al., Okl., 376 P.2d 206, 376 P.2d 211. Prior to accepting the defense of the Creek County action, Hartford mailed to C. E. Wininger a reservation of rights letter, dated June 22, 1960, reserving all policy defenses. This reservation of rights letter was addressed to C. E. Wininger, the named insured, and not to Jack Wininger, who was also an insured under the policy as a member of the family. It should be noted that in this reservation of rights it is stated: "In view of our telephone discussion today I will assume this is agreeable to you and your son unless we are notified otherwise." It was stipulated that the policy was in force and effect at the time of the collision and that Jack Wininger was an insured thereunder.
The issues in the case as agreed in the pretrial conference and incorporated in the Pretrial Order are:
1. Was defendant notified of the accident in compliance with the terms of the insurance policy?
2. If the defendant was not notified according to said policy, was there a breach of said policy by reason of such delayed notice?
3. Has defendant waived all policy defenses, and is it estopped to deny coverage for the accident of August 30, 1959?
4. Is plaintiff authorized to bring action in this manner or should he proceed by garnishment in court actions where Judgment was obtained?
The first two issues will be considered together. The term "accident" within the meaning of an automobile liability policy means an undesigned and unforeseen occurrence of an afflictive or unfortunate character resulting in bodily injury to a person or damage to property.1
The policy provisions as to notice are:
What is a reasonable time for giving notice of an accident depends upon the facts and circumstances of each particular case and is not subject to a more definite or specific answer.2 The insured in the case at bar admittedly was not involved in an accident in the sense that there was actual contact between his automobile and that of Mr. Day. The insured was a considerable distance ahead of the point where the accident occurred. It seems to be a reasonable rule that if the insured had no knowledge that he was involved in an accident and could not reasonably believe that he was involved therein, he should be excused from giving notice under the provisions of a public liability policy requiring written notice as soon as practicable.3 The insured in this case acted promptly after he learned a claim was being made against him.
It is only reasonable that an insured would not be required or expected to report an accident in which he was not involved. But if he witnesses an accident, such as young Wininger did in this case, but made a reasonable mistake as to his possible liability, the requirements of the policy respecting notice should be liberally construed in his favor and the policy...
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