Lewis v. Commercial Cas. Ins. Co., of Newark, N. J.

• Decision Date: 17 January 1923
• Docket Number: 66.
• Citation: 121 A. 259,142 Md. 472
• Parties: LEWIS v. COMMERCIAL CASUALTY INS. CO. OF NEWARK, N. J.
• Court: Maryland Court of Appeals

121 A. 259

142 Md. 472

LEWIS v. COMMERCIAL CASUALTY INS. CO. OF NEWARK, N. J.

No. 66.

Court of Appeals of Maryland

January 17, 1923

Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge.

Action by Jack Lewis against the Commercial Casualty Insurance Company of Newark, N. J. Judgment for defendant, and plaintiff appeals. Affirmed.

Walter L. Clark, of Baltimore (M. Henry Goldstone and Soper, Bowie & Clark, all of Baltimore, on the brief), for appellant.

Edward L. Ward, of Baltimore (Edwin W. Wells, of Baltimore, on the brief), for appellee.

PATTISON J.

This appeal involves the proper construction of a clause of an automobile liability policy issued by the appellee, the Commercial Casualty Insurance Company, to the appellant, Jack Lewis.

The clause of the policy referred to is as follows:

"Upon the occurrence of an accident or loss covered by this policy, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time to the company or its duly authorized agent. If a claim for damages is made upon the assured on account of such accident the assured shall give like notice thereof with full particulars."

The policy was issued on the 21st day of August, 1918, and on the 13th day of November, of the same year, while the policy was in force, the plaintiff's chauffeur, a brother, while driving the insured car about the employer's business injured one Thomas Fitzpatrick, who subsequently on the 8th day of January, 1919, died from the injuries so received.

Fitzpatrick at the time of the accident which resulted in his death was working for the Crane Company, which carried a compensation insurance with the Globe Indemnity Company. After appropriate proceedings before the State Industrial Accident Commission compensation was awarded the widow of Fitzpatrick, which was paid by the Globe Indemnity Company, and thereafter on the 4th day of January, 1919, the following demand was made by said company upon the owner of the insured automobile:

"Mr. Jack Lewis, Baltimore, Md.--Dear Sir: On November 13th, 1918, an automobile belonging to you and operated by Joseph Lewis, struck pipe being handled by Thomas Fitzpatrick, an employee of Crane Company, in front of 624-629 W. Pratt St. He was injured by this accident and is now about to die. The Globe Indemnity Company, insurers of Crane Company, will hold you responsible for this accident and loss and wish you to consider this as notice of such.

Yours truly,

[Signed] Harry H. Wilson, Atty."

Upon the receipt of the above letter, Lewis called the appellee over the phone at its office in the American Building, telling it of the demand upon him, and in reply thereto he was requested to send the letter to the company, which he did. Thereafter Mr. Wells, of the firm of Wells & McCormick, at that time counsel for the appellee, called upon the appellant at his office in the city, and was told by Lewis, that he was not at home at the time of the accident and was therefore unable to tell him anything about it, but referred him to his brother, "the chauffeur," and from him Mr. Wells obtained a sworn statement as to how the accident occurred. In this statement he said:

"I was going west on Pratt street at a speed of about twelve miles an hour and when I approached the plant of Crane Company I noticed freight cars standing in the centre of the street and also noticed a team standing near the freight car which was being loaded. This team blocked the right side of the street and I was forced to pull over to the left side to pass around the first two cars, and after passing these two cars my way was again blocked by another team so that I had to pull in between the second freight car and the third car which was separated from the first by a distance of twenty or twenty-five feet. While passing this third car on the right, a man who was handling pipes on the freight train, shoved a pipe into the side of my machine, striking it right in the centre bending the stay to the top and the vibration of the jar broke my windshield. I stopped immediately and somebody called that the man on top of the freight train had been hurt. This man had been thrown down into the car, but when I saw him he had been assisted to the ground and was standing up with his nose bleeding. I asked him if he was hurt very bad and whether he wanted to go to a hospital and he claimed that it was not necessary to take him to a hospital as they had their compensation doctor to treat him. I then went on about my business. I informed my brother of the situation when he returned from New York about a week or ten days after November 13th, and explained that the car had been damaged and spoke of the man's injuries and nose bleeding."

Attached to the above statement obtained on the 10th day of January, 1919, is the following memorandum, signed by the appellant:

"I have read the attached statement made by my brother, Mr. Joseph Lewis, and same is correct."

The appellant in his evidence stated:

"In the first conference, after he (Wells) got the letter from the insurance company, he came down and spoke about the case. He said he would get busy and go over to the State Accident Commission and try to be present at the hearing, on the second occasion he came back with this statement. He said: 'I looked into the matter; there is nothing to do; they are trying to put one over on you, if anything happens we will look after you; don't worry.' This was on the second visit from Mr. Wells, and he had that statement, and Mr. Wells asked me to sign it, which I did. I have had no further conference with him except the information I received after signing the statement that I had no case against the company and they were not responsible for any liability, which I think you have a letter also refusing counsel fee for the case."

The "information" to which he refers was the following letter:

"January 28, 1918.

Mr. Jack Lewis, 1411 E. Baltimore St., City--Dear Sir: At the request of our client, the Commercial Casualty Company, we beg to return herewith original of letter addressed you by Mr. Harry H. Wilson, of the Globe Indemnity Company.

We are further instructed by the Commercial Casualty Company to formally notify you that on account of your failure to give the Commercial Casualty Company immediate notice of accident, to which it was entitled under the terms of the policy, the matter of this claim is not covered by your policy No. AV-87065, or by any insurance in this company. On account of your violation of the condition of the policy as to the giving of notice it will be incumbent upon you to protect your interests in connection with any claim that may be made against you either by the Globe Indemnity Company or the representatives of the injured.

Yours truly,

[Signed] Wells & McCormick."

Thereafter, the exact date is not shown, suit was instituted by the Globe Indemnity Company against the appellant for the sum of $25,000, and the papers that were served upon him in connection with that suit were sent by his attorney, Mr. Goldstone, to the appellee, inclosed in a letter, dated the 28th day of August, 1919, asking it to defend the suit upon the condition that no responsibility should rest upon his client for the payment of fees in defending the action, and should it decline to defend upon the condition named, it was asked to return the papers. The appellee replied, denying all liability under the policy for the loss claimed, but agreed to defend the suit with the understanding that it should not be liable for any judgment that might be obtained thereon, or for the payment of any damage or loss on account of the accident upon which the suit was brought. This proposition was not accepted by the appellant, and the appellee declining to defend the suit, except upon the conditions stated by it, the appellant assumed to defend the suit himself. But before the case came to trial, it was compromised by the appellant paying to the Globe Insurance Company the sum of $500. This amount, together with the cost of suit and fees paid to counsel in defense of it, was demanded of appellee, and upon its refusal to pay the same, the suit in this case was brought.

At the conclusion of the trial, in which the facts we have stated were adduced, three prayers were offered by the defendant. The effect of each was to take the case from the consideration of the jury. We need, however, to consider but one of the prayers granted. By it the jury was instructed "that from the uncontradicted evidence in this case, the plaintiff failed to give immediate notice to the defendant of the accident in question, within a reasonable time after he had been informed of its occurrence," and therefore the verdict must be in favor of the defendant.

The counsel for the appellant, in their brief, speaking of this prayer, said:

"The defendant's third prayer required the jury to find from the uncontradicted evidence that plaintiff failed to give the company immediate notice of the accident. If this court should hold that under the language of the notice clause, the plaintiff

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