Kennedy v. Dashner

• Decision Date: 03 December 1947
• Docket Number: No. 48.,48.
• Citation: 319 Mich. 491,30 N.W.2d 46
• Parties: KENNEDY v. DASHNER (PREFERRED AUTOMOBILE INS. CO., Garnishee).
• Court: Michigan Supreme Court

319 Mich. 491

30 N.W.2d 46

KENNEDY

v.DASHNER (PREFERRED AUTOMOBILE INS. CO., Garnishee).

No. 48.

Supreme Court of Michigan.

Dec. 3, 1947.

OPINION TEXT STARTS HERE Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Action by Louis V. Kennedy against John Dashner to recover for injuries sustained by the plaintiff when struck by an automobile owned by the defendant. The action was defended by the Preferred Automobile Insurance Company, which had issued an automobile liability policy to the defendant. The plaintiff, after obtaining a verdict against the defendant, instituted garnishment proceedings against the Preferred Automobile Insurance Company. From a judgment for plaintiff against the garnishee, the garnishee appeals.

Judgment affirmed by a divided court.

DETHMERS, J., dissenting.

BOYLES, J., CARR, C. J., and BUTZEL, J., dissenting in part.

Before the Entire Bench.

Alexander, Cholett, Buchanan, Perkins & Conklin, of Grand Rapids, for garnishee defendant-appellant.

Robert S. McAllister, of Grand Rapids, for plaintiff and appellee.

BUSHNELL, Justice.

On June 22, 1945, plaintiff Louis V. Kennedy, while crossing Division avenue in the city of Grand Rapids, was struck by an automobile owned by defendant John Dashner and driven by his son, Kenneth. Kenneth was subsequently found guilty of leaving the scene of an accident, and sent to prison.

On August 9, 1945, 47 days after the accident, plaintiff's attorney wrote the garnishee defendant, Preferred Automobile Insurance Company, notifying them of the accident and suggesting a discussion of a possible settlement. On August 14, 1945, the insurance company replied, stating that they had no report of the accident. They did not receive a report from their insured John Dashner until August 31, 1945.

Suit was instituted by Kennedy against Dashner on September 19, 1945, which the insurance company defended after first having advised Dashner that no liability was assumed by them. Dashner was notified by the insurance company of the date of the trial and told to be present. When he failed to appear, he was again notified of the adjourned date and urged to co-operate in the defense of the case. This second notice was sent by registered mail and again Dashner failed to appear. The case was tried without him and plaintiff obtained a verdict in the sum of $5,000.

On May 15, 1946, the instant garnishment action was instituted and later tried by the court without the aid of a jury. The trial judge found in favor of the plaintiff and a judgment of $5,000 was entered against defendant insurance company.

In support of its denial of liability, defendant insurance company urged the following defenses: Failure to comply with the conditions of the policy, which required the insured ‘as soon as practicable’ to give ‘written notice of any accident, claim, loss or suit;’ failure ‘to appear at the trial and at all times render all possible co-operation and assistance.'

The controlling question presented on appeal is whether a notice received by the insurance company 47 days after an accident satisfies the contractural obligation to give a notice ‘as soon as practicable.'

Plaintiff's right to recover against the garnishee is generally dependent on the principal defendant's right to so recover. Musser v. Ricks, 271 Mich. 174, 259 N.W. 882, and Zabonick v. Ralston, 272 Mich. 247, 261 N.W. 316. But see Iden v. Huber, 259 Mich. 3, 242 N.W. 818.

Appellant relies, among other authorities, on Oakland Motor Co. v. American Fidelity Co., 190 Mich. 74, 155 N.W. 729, 730, where a judgment in favor of plaintiff was reversed without a new trial. The insurance policy in that case required that:

‘Upon the occurrence of an accident, the insured shall give immediate written notice thereof, * * * with the fullest information obtainable, to the agent by whom this policy has been countersigned, or to the company's home office.'

An accident occurred on May 4, 1912, but the first notice which plaintiff gave to its insurer was on August 15, 1912, after suit had been commenced. The operator of the motor vehicle had previously left plaintiff's employ and his whereabouts was unknown. As a result of plaintiff's neglect to promptly notify the insurer, the latter was prejudiced by being deprived of the testimony of a most important and material witness for the defendant in the principal suit. We concluded, though constrained to do so, that, as a matter of law, under the undisputed evidence, plaintiff failed to give timely notice of the accident and claim in compliance with its contract agreement.

The instant case presents a different situation. The policy involved requires that the notice is to be given ‘as soon as practicable.’ Notwithstanding the difference in the language of the policies of insurance in the instant and the Oakland Motor Co. cases, the general meaning of the terms has been held to be a reasonable time, dependent upon the facts and circumstances of the case. See authorities annotated in 76 A.L.R., beginning at page 23, especially page 46 et seq. Admittedly, insurers are entitled to an opportunity to investigate claims and adequately prepare their defense. Here, the insurer was put on notice 47 days after the accident when it received a letter from plaintiff's attorney. An inquiry at the local police department would have disclosed considerable information with respect to the claim. The terms of the insurance contract are strictly construed in favor of the insured. Pawlicki v. Hollenbeck, 250 Mich. 38, 229 N.W. 626, and we cannot say that 47 days' delay in acquiring knowledge of a claim is a violation of the insurance contract even though such notice was not given by the insured.

The record does not disclose that Dashner could have been of any assistance at the trial if he had been present. He was not an occupant of the car at the time of the accident, and probably could have offered no testimony pertaining thereto.

It is argued that Dashner's failure to disclose the whereabouts of his minor son Kenneth, the driver of the car, and his failure to grant permission to interview him in prison, breached the contract of insurance. Kenneth's whereabouts was known to the insurance company prior to the trial of the principal case and his deposition could have been taken, or he could have been produced as a witness upon proper showing to the trial court. 3 Comp.Laws 1929, § 15200 et seq., Stat.Ann. § 27.2244 et seq.

In short, the record wholly fails to show in any particular where the insurer's rights have been prejudiced in any respect. Furthermore, the trial court found that appellant had notice sufficiently in compliance with the terms of the policy, and that, after such notice, appellant appeared and defended the principal case.

The judgment of the trial court is affirmed, with costs to appellee.

SHARPE, REID, and NORTH, JJ., concurred with BUSHNELL, J.

DETHMERS, Justice (dissenting)

I do not concur in the opinion of Mr. Justice BUSHNELL.

The policy expressly provides, as a condition precedent to liability, that the assured shall, as soon as practicable, give the insurer written notice of any accident thereunder. This court has given recognition to such provision as a condition precedent to liability. Oakland Motor Co. v. American Fidelity Co., 190 Mich. 74, 155 N.W. 729. Assured failed to give the insurer notice of the accident in question until seventy days after its occurrence and the insurer's first knowledge of the accident came by means of a letter from plaintiff's attorney received forty-seven days after the accident. No showing is made in the record to explain, justify or excuse assured's delay despite the burden reposing on the assured or plaintiff in that respect. Rushing v. Commercial Casualty Insurance Co., 251 N.Y. 302, 167 N.E. 450. It can only be concluded that the delay was inexcusable. In consequence, it must be held that assured did not give the insurer notice ‘as soon as practicable’, as required by the policy.

The requirement of the policy that notice be given ‘as soon as practicable’ and similar provisions in policies for immediate notice, etc., are commonly construed as calling for notice within a reasonable time. Vanderbilt v. Indemnity Insurance Co. of North America, 265 App.Div. 495, 39 N.Y.S.2d 808;Empire State Surety Co. v. Northwest Lumber Co., 9 Cir., 203 F. 417;Bartel Brewing Co. v. Employers' Indemnity Co., 251 Pa. 63, 95 A. 919. Even under such construction it seems to me that we are constrained to hold that the assured did not fulfill the condition precedent in the policy. Notice given by the assured seventy days after the accident or by plaintiff's attorney after forty-seven days was not notice within a reasonable time. See Phillips v. Stone, 297 Mass. 341, 8 N.E.2d 890;McCarthy v. Rendle, 230 Mass. 35, 119 N.E. 188, L.R.A.1918E, 111;Associated Indemnity Corporation v. Garrow Co., D.C., 39 F.Supp. 100, affirmed 2 Cir., 125 F.2d 462; and Foster v. Fidelity & Casualty Co., 99 Wis. 447, 75 N.W. 69,40 L.R.A. 833 in which cases the courts held that notices of accidents, as required by insurance policies, after unexplained delays varying from twenty days to a month, were not given within a reasonable time.

I am not in accord with Mr. Justice BUSHNELL'S view that a showing of prejudice to the insurer's rights, resulting from assured's failure to give notice within a reasonable time, is essential to the insurer's defense. In the case of St. Louis Architectural Iron Co. v. New Amsterdam Casualty Co., 8 Cir., 40 F.2d 344, 347, and in which certiorari was denied, 282 U.S. 882, 51 S.Ct. 86, 75 L.Ed. 778, assured failed to give insurer notice of accident for four months. The court not only held that such notice was not given within a reasonable time, but said:

‘We think that, where by the contract between the parties the giving of the specified notice is a condition precedent to liability, a showing by the casualty company of prejudice to its rights is not necessary to its...