Heimbecher v. Johnson
| Decision Date | 09 January 1951 |
| Parties | HEIMBECHER, v. JOHNSON et al. |
| Court | Wisconsin Supreme Court |
Lehner & Lehner, Adolph P. Lehner, Howard N. Lehner, and Eugene E. Behling, all of Oconto Falls, for appellant.
Herbert W. Johnson, Sturgeon Bay, (H. S. Humke, Paul L. Axel, Sheboygan, of counsel), for respondent.
It is undisputed that the company received no notice of accident and it contends that to create liability on its part it must be shown not only that the notice was sent but that it was actually received. The policy provides that 'notice shall be given' 'as soon as practicable'. However, neither its provisions nor any statute requires that it be shown that it was received, nor does either provide an exclusive manner of giving notice. That the company recognizes more than one method is indicated by the fact that the policy carries on its face in large letters a direction to 'send all notices of accident' to its Madison address without prescribing the manner in which it is to be sent.
To the proposition that there must be proof of receipt of the notice the company cites Hotel Hay Corp. v. Milner Hotels, Inc., 255 Wis. 482, 39 N.W.2d 363, 366. In that case the provision in the contract respecting notice was that the one party 'agrees to notify' the other, contemplating, of course, that knowledge of the facts contained in the notice be brought to the other party. In the instat case the policy provisions contained in the body thereof require that notice 'shall be given', from which it should perhaps also be implied that actual knowledge of the facts be brought to the company. However, as has been pointed out, upon the face of the policy, in large letters, is a direction to send notice. Clearly the latter direction does not contemplate that receipt of the notice be established or that it be shown that the information required to be included in the notice be actually brought to the knowledge of the company.
The existence of the two apparently inconsistent directions creates an uncertainty of meaning, and, under the rule that provisions which tend to limit the liability of the insurer or which are ambiguous should be construed most strongly against it, Kelly v. Fidelity Mut. Life Ins. Co., 169 Wis. 274, 172 N.W. 152, 4 A.L.R. 845, there is compliance when the notice is sent as directed on the face of the policy.
We conclude that if it be established that notice was sent by the assured in the ordinary mail and within the time limited by the policy or the statute there was compliance.
It is not surprising that counsel is impressed by the discrepancy appearing in Johnson's statements as to the address to which he claims he sent the notice-in the one he says that he addressed it to the company at Milwaukee; in the other, that he sent it to its Madison office. But the court is without power on a motion for summary judgment to say that his last statement, that he sent it to Milwaukee, is unbelievable, and upon that ground determine that the notice was not sent. That is a matter which affects his credibility and is to be considered by the trier of the facts when the ultimate issue is determined.
Whether or not Johnson sent the notice presents a substantial issue of fact. It has been consistently held by this...
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