Myers v. Maryland Casualty Co.

• Decision Date: 04 March 1907
• Citation: 101 S.W. 124,123 Mo. App. 682
• Parties: MYERS v. MARYLAND CASUALTY CO.
• Court: Missouri Court of Appeals

101 S.W. 124

123 Mo. A. 682

MYERS v. MARYLAND CASUALTY CO.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

Rehearing Denied April 1, 1907.

1. INSURANCE—ACCIDENT INSURANCE—NOTICE OF INJURY—TIME.

Where a policy requires the giving of immediate notice of the injury, the notice must be given within a reasonable time; compliance with the requirement being treated as a condition precedent to the right of the assured to maintain an action on the policy, and without a showing of good cause therefor, the failure of the insured to give notice until six weeks after the injury constitutes a breach of the condition.

2. SAME—WAIVER OF FORFEITURE.

Where the general agent of the insurance company was informed of plaintiff's claim, and told the date of the injury, and therefore knew that a cause of forfeiture existed, and nevertheless furnished plaintiff a blank notice that a more formal notice might be given, and had plaintiff submit to a physical examination by the company's physician the company waived the right of forfeiture.

3. APPEAL—ADMISSIBILITY OF EVIDENCE— HARMLESS ERROR.

In an action on a policy, where the question of notice is disposed of on the hypothesis that the conduct of the parties subsequent to the expiration of the time for giving notice constituted a waiver, error, if any, in admitting evidence that the broker from whom the policy was obtained as the agent of the insurer, received notice of the injury, was harmless.

4. JUDGMENT—ADJUDICATION IN CRIMINAL PROSECUTION—EFFECT IN CIVIL PROCEEDINGS.

In an action on an accident policy by a person who was prosecuting witness in a criminal action against the one who inflicted the injury upon him, in which accused was acquitted, the judgment of acquittal is not admissible either as an adjudication or as evidence to establish the fact that plaintiff was not the victim of an unprovoked assault.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by I. V. Myers against the Maryland Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hunt C. Moore and Pratt, Dana & Black, for appellant. A. S. Lyman and D. W. Brown, for respondent.

JOHNSON, J.

Action on a policy of accident insurance begun on the 26th day of March, 1904. Plaintiff recovered judgment in the sum of $650, and defendant appealed.

The policy, admitted to have been in force at the time of the injury alleged, provided for the payment to the assured of an indemnity of $25 per week should he sustain bodily injuries "through external violent and accidental means * * * if such injury, independently of all other causes shall immediately, continuously, and wholly disable and prevent the assured from performing any and every kind of duty pertaining to his occupation." On the 19th of August, 1903, plaintiff, according to his evidence, was assaulted without cause or provocation by a tenant, and so mishandled that the injuries he sustained totally disabled him for a period of 26 weeks. The facts necessary to the statement of a cause of action are sufficiently pleaded in the petition, and were put in issue by the answer of defendant, which, among others, contains the defense that "plaintiff has never complied with the terms and conditions of his said policy, and has never served any written notice upon defendant, as required by the terms and conditions of said policy." Defendant's evidence tends to show that the assault was provoked by wrongful conduct of plaintiff towards his tenant; and, further, that the injuries sustained by plaintiff in the encounter were not so severe and disabling as he and his witnesses say they were. These issues were submitted to the jury in appropriate instructions, and settled in favor of plaintiff.

The policy provides that: "Immediate written notice must be given the company at Baltimore, or its duly authorized agent, of any accident or injury for which a claim is to be made, with full particulars thereof and full name and address of the assured." It is argued by defendant that its request for a peremptory instruction should have been granted, because of the failure of plaintiff to comply with this provision. Instead of giving an instruction of this character, the learned trial judge instructed the jury that "defendant herein has waived the immediate written notice required by the policy, and that question is excluded from your consideration." Defendant insists, first, that there is no evidence in the record on which to predicate a waiver of the notice; and, second, that the facts adduced on that issue, if found to be substantial, possess no greater evidentiary value than to raise an issue of fact for the jury, and did not justify the court in assuming as a matter of law that the giving of the notice had been waived. The proof shows that the policy had been procured by plaintiff from an insurance broker, who was not a commissioned agent of defendant, but solicited business on his own account, and when a risk was obtained placed it with one of several companies with which he dealt. The day after the injury the wife of plaintiff, at his request, sent a written message to the broker, informing him, in substance, that plaintiff had been injured, and requesting him to call. The broker promptly complied with the request, and on his visit to plaintiff was informed of the cause and nature of the injuries. The subject of the insurance was mentioned, and it may be said that plaintiff indicated to the broker his purpose to claim the indemnity provided in the policy. Nothing was done by either plaintiff or the broker in the giving of written notice to defendant until the 3d day of October, following, when the broker mailed this letter to the general agent of defendant at Kansas City: "I beg to report an injury to Israel V. Myers on August 19th. He was assaulted by his tenant. At the time I thought perhaps he would not put in a claim, but it has turned out worse than was expected. He is insured under policy No. C, 15,753, dated Feb'y 7—03." The general agent, who testified as a witness for defendant, admitted that on receipt of this letter he gave the broker a blank notice of injury for plaintiff's use, and that the blank was used in the preparation of the following notice which came to the hand of the agent on October 8th: "Name of insured, Israel V. Myers. Date of accident, Aug. 19th. Hour, 6 o'clock in the morning. Place where it occurred, 1443 Jefferson street. Was coming from bathroom in my home, 1443 Jefferson street, and was assaulted by Mr. Montville, a tenant. Was knocked down the stairway, and kicked and beat ever the head and body causing rupture of blood vessel in the head [or ear] and sickness at stomach." Shortly after the receipt of this notice, the physician of defendant, at the request of the general agent,...