Heller v. Standard Accident Ins. Co.
| Decision Date | 14 March 1928 |
| Docket Number | 20584 |
| Citation | 118 Ohio St. 237,160 N.E. 707 |
| Parties | Heller v. The Standard Accident Ins. Co. |
| Court | Ohio Supreme Court |
Insurance - Automobile indemnity - Immediate notice of claim requires action within reasonable time under circumstances - Delay not justified for want of knowledge of claim, when - Failure by insured to diligently ascertain claim or suit - Burden of proving impossibility or exercise of diligence upon insured.
1. A policy of indemnity against liability to others resulting from accident contained a condition requiring the assured to give immediate written notice of any claim made on account thereof, and, in case of suit brought, to "immediately forward to the company every summons or other process served on him." Suit for recovery of damages was instituted and summons served at the assured's residence on December 26 1922. As an excuse for noncompliance with the condition of his policy requiring the immediate forwarding of the process the assured claimed want of and the impossibility of knowledge of the claim and suit until the latter part of April, 1923, because of his absence from home and subsequent illness confining him to his house until that time. Held: The term "immediate," contained in the policy, means action taken on the part of the assured within a reasonable time under the circumstances of the case. (Travelers Ins. Co v. Myers, 62 Ohio St. 529, 57 N. E., 458, 49 L.R.A. 760 approved and followed.)
2. The assured cannot justify his delay in failing to comply with the policy condition, by claiming want of and impossibility of knowledge of such claim or suit, if he has failed to use due diligence in ascertaining their existence.
3. Upon the issue of his impossibility of performance, or of his exercise of due diligence in complying with the policy condition, the burden of proof rests upon the assured.
The parties stand in the same relation here as in the courts below and will be alluded to as plaintiff and defendant.
Plaintiff, Meyer Heller, instituted an action in the Common Pleas Court, alleging in his petition that, on March 20, 1921, the defendant issued to him its policy of insurance, agreeing to indemnify him against loss on account of bodily injuries, accidentally sustained by reason of the ownership, maintenance and use of his automobile, and to defend any lawsuit which might be brought against him on account of such injuries. While this policy was in force he alleges that an accident occurred to one Yudelevitz, who suffered injuries in a collision with plaintiff's automobile; that Yudelevitz filed a petition in the Court of Common Pleas against the plaintiff for damages and recovered a judgment in the sum of $300 against him; that the defendant neglected and refused to defend the lawsuit; that by reason thereof the plaintiff was required to employ legal counsel to defend it, which was done at a reasonable counsel fee of $400.
In this case plaintiff seeks to recover from the defendant the amount of the judgment and the counsel fee. The defendant admitted the issuance of the policy, the injury to Yudelevitz, the recovery of a judgment, and the reasonableness of the fee. As a special and second defense in its answer the defendant pleaded a violation of the policy contract by Heller, in that it contained the following stipulation:
The insurance company, in this connection, pleaded that the suit of Yudelevitz for personal injuries was begun on December 26, 1922, and that copies of the summons and petition were served on the plaintiff a day or so thereafter; that the plaintiff did not immediately forward to the defendant these copies, and gave no notice of the pendency of Yudelevitz's action against him until May 14, 1923. Because of this breach in the policy contract by the plaintiff, the defendant denied any right of recovery.
The case was submitted to the court without the intervention of a jury and was heard upon an agreed statement of facts incorporated in a bill. On the issues joined, the trial court found for the insurance company, defendant, and rendered judgment in its favor. This was affirmed by the Court of Appeals, whereupon error was prosecuted to this court, leave therefor having been granted.
In the agreed statement the following additional facts appear: The accident of Yudelevitz happened on June 22, 1921, at night, and the following morning the plaintiff reported it and gave to the insurance company his written statement about it. The insurance company did not know of any claim made by Yudelevitz by reason of the accident until May 15, 1923,when its agent was first apprised of the lawsuit brought by him on December 26, 1922. Copies of the summons and petition were left at Heller's residence while he was absent from the city. Heller's daughter, not knowing their purport, took these papers to Mr. Heller's attorney, a Mr. Glick, defending the lawsuit, and told him to file an answer therein. This attorney knew nothing concerning the policy issued to Heller. Heller returned home in the following February and was advised that papers were left at his house and that Glick was looking after it. About that time Heller was taken sick and was confined to his house until the latter part of April, "and for one reason or another it did not come to his attention or Mr. Click's attention that there was a lawsuit growing out of the accident for which he was insured for some time, so it was not until May 14, 1923, that Mr. Glick and Mr. Heller woke up to the realization that this was the case which was already in the hands" of the adjuster for the insurance company. In the meantime Glick, because of Heller's absence from home or illness, had obtained several leaves to answer, the last expiring May 26, 1923. The notice of the lawsuit which the agents of the insurance company had received on May 15, 1923, was referred to the home office of the insurance company, and on May 23 it advised Heller's attorney that it disclaimed liability on the ground that no immediate notice of the claim or suit bad been given it pursuant to the requirement of the policy contract.
Mr. M. C. Harrison, for plaintiff in error.
Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, and Mr. Neil P. Beall, for defendant in error.
In the trial court the plaintiff attached to his petition a copy of the policy, but did not allege performance of "all the conditions on his part to be performed." The petition was therefore demurrable; but since the cause proceeded to trial, upon the issue of performance, error cannot be predicated upon such defective pleading. Union Ins. Co. of Dayton v. McGookey, 33...
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