Dennis Sheen Transfer v. Georgia Casualty Co.

• Decision Date: 25 April 1927
• Docket Number: 26581
• Citation: 113 So. 165,163 La. 969
• Court: Louisiana Supreme Court
• Parties: DENNIS SHEEN TRANSFER v. GEORGIA CASUALTY CO

113 So. 165

163 La. 969

DENNIS SHEEN TRANSFER v. GEORGIA CASUALTY CO

No. 26581

Supreme Court of Louisiana

April 25, 1927

Rehearing Denied May 23, 1927

Appeal from Civil District Court, Parish of Orleans; Porter Parker Judge.

Action by the Dennis Sheen Transfer against the Georgia Casualty Company Judgment for plaintiff, and defendant appeals.

Judgment annulled and set aside, and plaintiff's demand rejected.

Edward Rightor and Eugene J. McGivney, both of New Orleans, for appellant.

Denegre Leovy & Chaffe, of New Orleans, for appellee.

OVERTON J. O'NIELL, C. J., dissents.

OPINION

OVERTON, J.

The Dennis Sheen Transfer, as its name indicates, is in the transfer business, and was engaged in that business in October, 1920. It had a policy in the Georgia Casualty Company, the defendant herein, which covered the month of October, 1920, insuring it against loss, arising from certain accidents. The policy, among other provisions, contains one, which it provides shall be construed as a condition precedent, reading as follows:

"When an accident happens the assured shall give immediate written notice thereof to the company at its home office in Macon, Ga., or to its duly authorized agent. If any claim is made on account of such accident the assured shall give like notice thereof. If any suit is brought to enforce such a claim the insured shall immediately forward to the company at its home office in Macon, Ga., every summons or other process as soon as the same is served upon him, and the company shall defend such suit (whether groundless or not) in the name and on behalf of the assured. All expenses (legal and otherwise) incurred by the company in defending such suit and all court costs assessed against the assured shall be paid by the company (whether the verdict is for or against the assured), regardless of the limits of liability expressed in condition M. The assured shall always give to the company all co-operation and assistance possible. The company shall have the right to settle any claim or suit at its own cost at any time."

On October 23, 1920, while the policy, mentioned above, was in effect, one of plaintiff's drivers, while driving a wagon belonging to plaintiff, ran into a truck, owned by E. A. Fitler, at the intersection of St. Charles avenue and Thalia streets, in the city of New Orleans. In the collision, the tongue of the wagon was rammed into the truck and mashed the left hand of Fitler's child. In a letter, dated October 26, 1920, which was received by plaintiff on October 29, 1920, Fitler, through his attorney, notified plaintiff of the accident, and of his intention to hold plaintiff liable for the injury caused his child.

After the receipt of this letter some correspondence ensued between plaintiff and Fitler's attorney in an effort on the part of plaintiff to obtain further information concerning the accident, especially the name of the driver and the number of the license plate on the wagon, but Fitler's attorney was unable to give this and other information desired, and finally plaintiff wrote him that, until the information requested had been furnished, it could do nothing towards investigating the claim of his client.

On January 20, 1921, Fitler instituted suit against plaintiff for the injury sustained by his child and for damage to his truck. Fitler was successful in this suit, obtaining a judgment against plaintiff, including principal, interest, and costs, for $ 2,369.75. Plaintiff paid Fitler this amount, and also paid $ 50 for the printing of briefs and $ 350 for services rendered in the case, in the trial court and on appeal, by its attorneys. Plaintiff then instituted the present suit against the Georgia Casualty Company, the defendant herein, on the policy issued by that company, to recover the foregoing amounts, aggregating $ 2,769.75. The defense is a denial of the allegations contained in plaintiff's petition that notice of the accident was given it by plaintiff, as provided in the policy.

When suit was filed by Fitler against plaintiff, the latter delivered to defendant the copy of the petition and citation served upon it and the correspondence had between it and Fitler's attorney. On the day that the papers were delivered to it, defendant wrote plaintiff, calling its attention to the fact that the petition and papers delivered disclosed that the accident occurred on October 23, 1920 that demand was made on plaintiff three days later by Fitler's attorney; that considerable correspondence had taken place between the latter and plaintiff, none of which had been communicated to it, and that the suit against plaintiff was the first notice it had of the accident. Plaintiff claimed that it had given not only immediate written notice to defendant of the accident, as provided by the policy, but also, through its secretary and treasurer, had discussed the accident with F. A. Dicks, defendant's state agent, and with one of defendant's adjusters. Defendant still contended that it had received no such notice, and that the first knowledge it had of the accident was when the papers, relating to the suit against plaintiff, were delivered to it. Plaintiff was unable to produce, at the time, a copy of the notice, which it claimed it had mailed defe...