Deer Trail Consol. Min. Co. v. Maryland Cas. Co.

• Decision Date: 05 October 1904
• Parties: DEER TRAIL CONSOL. MIN. CO. et al. v. MARYLAND CASUALTY CO. OF BALTIMORE, MD.
• Court: Washington Supreme Court

78 P. 135

36 Wash. 46

DEER TRAIL CONSOL. MIN. CO. et al. v. MARYLAND CASUALTY CO. OF BALTIMORE, MD.

Supreme Court of Washington

October 5, 1904

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by the Deer Trail Consolidated Mining Company and others against the Maryland Casualty Company of Baltimore, Md Judgment for plaintiffs. Defendant appeals. Reversed.

Danson & Huneke, for appellant.

Tolman & Kimball and Happy & Hindman, for respondents.

MOUNT, J.

In the years 1900 and 1901 the respondents were the owners of certain mines in Lincoln county, Wash. The respondents Yarwood Bros. were operating these mines, and the net proceeds thereof were divided equally between the Yarwood Bros. and the Deer Trail Consolidated Mining Company. On March 20, 1900, the Deer Trail Consolidated Mining Company applied to the appellant for an indemnity insurance contract in favor of itself and the Yarwood Bros. This contract was issued by appellant in favor of the respondents, indemnifying them for the period of one year against loss from statutory and common-law liability for damages on account of bodily injury suffered by an employé of the assured. It was delivered to the Deer Trail Consolidated Mining Company, and the premium paid. The Yarwood Bros. were not informed and did not know of the contract of insurance. On the 19th day of May, 1900, one Nels Johnson, while in the employ of respondents, and while performing his duty as such employé was injured through the negligence of respondents. W. J Yarwood was general manager of the mines at the time of the injury, but he did not know of the injury, and did not hear thereof for several days after it had happened. When he heard of it he went to Johnson, and asked him if he was hurt. Johnson replied, 'My thumb is sore yet, but I will get to work in a day or two.' A few days after this Johnson went to work in the mine, and continued to work until the mine closed down in September following. During the time he was working he made no complaint on account of being injured. Yarwood did not know of the existence of the policy of insurance, and did not notify the Deer Trail Consolidated Mining Company of the accident. In January 1901, Johnson commenced an action against respondents to recover damages for his injuries. This was the first time he had made any claim for his injuries. The complaint was served on the Deer Trail Consolidated Mining Company on January 22, 1901. On the same day P. A. Daggett & Co., the local agents of the appellant, were notified of the action, and requested to defend the same, which they refused to do. The respondents thereupon defended the action, and subsequently a judgment was rendered against them in favor of Johnson for $1,717.60. Respondents paid this judgment in favor of Johnson, and also paid costs of defending the action, amounting to $268.85, in addition to the amount of the judgment named. Respondents thereupon brought this action against appellant upon the contract of insurance. The complaint sets out a copy of the policy, alleges its execution and delivery on March 20, 1900, and the payment of the premium. It alleges the injury to Johnson on May 19, 1900, while he was in the employ of respondents; that the injury was not known to the Deer Trail Consolidated Mining Company until January 21, 1901, and that Yarwood did not know of the insurance until January 22, 1901; that respondents did not know that Johnson intended to make any claim for damages until that time; that Johnson, on January 21, 1901, commenced an action for $2,000 damages against the respondents; that thereupon respondents notified appellant thereof, and that appellant thereupon agreed to and did extend the time for giving notice of the accident to January 28, 1901, and furnished blanks to respondents for that purpose; that, relying upon this extension of time, respondents, at great trouble and an expense of $50, gave a written notice to appellant on January 28, 1901. The complaint also alleges that Daggett & Co. are the general agents of the appellant, authorized to issue and settle policies of insurance, and that, knowing of the facts, they extended the time for giving notice of the accident and authorized the attorneys for the appellant company to appear in the action of Johnson v. Yarwood Bros. and the Deer Trail Consolidated Mining Company, and that said attorneys thereupon did appear in said cause, and filed a motion requiring said Johnson to give a bond as security for costs; that thereafter appellant refused to proceed further in said case. The complaint then alleges that Johnson obtained a judgment against respondents, and the payment thereof. The appellant appeared and demurred to the complaint. This demurrer was overruled, whereupon appellant filed an answer denying any liability under the policy of insurance. Upon a trial of the cause to a court and jury a verdict was returned for the full amount claimed, and judgment was entered upon the verdict.

Appellant defended the action in the lower court upon the ground that no notice had been given of the accident according to the terms of the policy, and that there had been no waiver of the notice. Upon this appeal they rely on the same points. The contract sued on provides, among other things, as follows 'This insurance is subject to the following conditions, which are to be construed as conditions precedent to this contract: 1. The assured, upon the occurrence of an accident, shall given immediate notice thereof in writing with the full particulars to the home...