John B. Stevens & Co. v. Frankfort Marine, Acc. & Plate Glass Ins. Co.
| Decision Date | 08 September 1913 |
| Docket Number | 2,255. |
| Citation | 207 F. 757 |
| Parties | JOHN B. STEVENS & CO. v. FRANKFORT MARINE, ACCIDENT & PLATE GLASS INS. CO. FRANKFORT MARINE, ACCIDENT & PLATE GLASS INS. CO. v. JOHN B. STEVENS & CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. W Quick and L. B. Da Ponte, both of Tacoma, Wash., for plaintiff.
R. S Holt, U. E. Harmon, and Hudson, Holt & Harmon, all of Tacoma Wash., for defendant.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
The policy of insurance upon which this action was brought indemnified the plaintiff (plaintiff in error here), John B Stevens & Co., a corporation, against loss arising from legal liability for damages on account of bodily injury or death suffered by any of its employes from accidental causes, not exceeding the sum of $5,000, and also against the costs of defending an action or actions to recover such damages. While the policy was in force one I. B. Merrill, an employe of the assured, was injured, and on October 28, 1909, commenced an action to recover damages therefor. The plaintiff immediately sent the summons and complaint in the action to the insurance company, with the request that it take the defensive proceedings provided for by the policy, which the insurance company refused to do, for which reason the plaintiff was compelled to defend the action at its own cost, incurring expense therefor in the sum of $1,073.95. The Merrill action resulted in a judgment against the assured for $6,100, which on appeal was affirmed by the Supreme Court of the state of Washington, in which state the suit was brought, and which judgment was paid, with interest and costs, by the plaintiff in the present action.
In its answer to the plaintiff's amended complaint, the insurance company set up, among other things, that the policy sued on was issued to the plaintiff in the state of Washington, and that Merrill received the injuries alleged in the complaint on or about June 15, 1909, which fact the plaintiff at the time well knew, but that, notwithstanding such knowledge, the plaintiff did not give notice of the injury, or of the accident from which it arose, in writing or otherwise, to the insurance company 'until the latter part of October or the first part of November following the said accident and injury,' and for that reason the defendant insurance company denied any liability to the plaintiff under the policy and refused to undertake the defense of the action of Merrill, and further pleaded in defense of the present action that--
'by reason of the failure of the said plaintiff to give the said notice, and its failure to investigate the accident and to preserve the testimony, the evidence became destroyed and the witnesses scattered, and at the time the action referred to in plaintiff's complaint was brought, by reason of the neglect of the plaintiff to properly attend to the matter, and by reason of certain changes and alterations that it had made in the structure at which the accident occurred, it was no longer possible to successfully defend the said action.' In the plaintiff's reply to the insurance company's answer it admitted that the policy sued on was issued in the state of Washington, and admitted that it gave no notice of the accident or injury to Merrill prior to October 19, 1909, but denied that it knew of the injuries or accident on or about June 15, 1909, or at any time prior to October 19, 1909, and alleged that immediately upon learning thereof it gave due notice of the same to the insurance company. In its reply the plaintiff also admitted that there was an alteration made in the structure where the accident happened, but alleged that the same was slight and immaterial, was made prior to the time that the plaintiff knew of the accident, and that it was not claimed by Merrill to have been responsible for the accident or connected therewith in any way, and that the structure was totally destroyed by fire without the plaintiff's fault prior to the time that the suit brought by Merrill was or could have been tried, and could not have been available for use as evidence in that action.
The clause of the policy in suit in respect to the giving of notice is as follows:
'That upon the occurrence of an accident, whether any claim be made in respect thereof or not, the assured shall immediately, and at the latest within ten days, or within the time fixed for giving notice of accidents under liability insurance policies by any special law of the state in which the policy is issued, give notice in writing of such accident to the company,' etc.
The policy also contains this clause:
The court below on the trial of the action refused to allow the assured to prove that it had no notice of the accident or injury to Merrill until October 19, 1909, on which day it received a letter from Merrill's attorneys giving the notice and demanding a settlement for the injury, and on which day it was admitted that the assured sent the letter to the insurance company; and the trial court refused to allow the assured to prove the facts with respect to the happening of the accident, and refused to allow it to prove that the defendant insurance company--
'was not prejudiced by not having notice sooner; that all of the witnesses were...
To continue reading
Request your trial
-
Berg v. Associated Employers' Reciprocal
... ... be enforced by the insured. (Imperial Fire Ins. Co. v ... County of Coos, 151 U.S. 452, 14 ... receives it. (Stevens & Company v. Frankfort Marine etc ... Ins. Co., ... ...
-
State Farm Mut. Auto. Ins. Co. v. Cassinelli
...notice unless the insurer is prejudiced by such lack or such delay. The first is John B. Stevens & Co. v. Frankfort Marine, Accident & Plate Glass Insurance Co., 9 Cir., 1913, 207 F. 757, 47 L.R.A., N.S., 1214. In this case the Circuit Court of Appeals held that the district court was in er......
-
American Mut. Liability Ins. Co. v. Buckley & Co.
...89 Pa.Super. 281, 288; American Surety Company of New York v. McSpadden, 86 Pa.Super. 316. See John B. Stevens & Co. v. Frankfort, etc., Ins. Co., 9 Cir., 207 F. 757, 47 L.R.A.,N.S., 1214; Brassil v. Maryland Casualty Co., 147 App.Div. 815, 133 N.Y.S. 187, affirmed 210 N.Y. 235, 104 N.E. 62......
-
Arenson v. National Auto. & Cas. Ins. Co.
...279 N.Y. 638, 18 N.E.2d 38.) This has been held true even where the appeal was unsuccessful. (John B. Stevens & Co. v. Frankfort M., A. & P. G. Ins. Co. (9 Cir., 1913), 207 F. 757, 762(3).))' (For a more complete discussion of the foregoing rules and collection of cases in support thereof s......