Nelson v. Travelers Ins. Co.

Citation30 A.2d 75
Decision Date05 February 1943
Docket NumberNo. 1703.,1703.
PartiesNELSON v. TRAVELERS INS. CO.
CourtUnited States State Supreme Court of Vermont

OPINION TEXT STARTS HERE

Exceptions from Washington County Court; Samuel H. Blackmer, Judge.

Action by Theodore Nelson, for the benefit of the Hartford Accident & Indemnity Company, against the Travelers Insurance Company to recover amounts paid by the Hartford Accident & Indemnity Company under its public liability policy in settlement of actions arising out of an automobile accident brought against plaintiff. Judgment was entered for the defendant, and exceptions were filed by both parties.

Judgment affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

Finn & Monti, of Barre, for plaintiff.

Theriault & Hunt, of Montpelier, for defendant.

JEFFORDS, Justice.

The plaintiff on February 7, 1939, while operating an automobile belonging to Joseph Comolli was involved in an accident from which injuries resulted to two persons, Mavis French and Raymond Blackburn. At the time of the accident the car was covered by a public liability policy issued by the defendant to Comolli. This policy in addition to the standard conditions found in such policies contained the following provision: “Such insurance as is afforded by this policy shall exclude any obligation of the company with respect to loss or damage sustained while the automobile is being operated or used by any person other than the Named Assured or members of his immediate family, anything in the policy to the contrary notwithstanding.”

Prior to February 7, 1939, the plaintiff had been required to file proof of financial responsibility under the motor vehicle law of this state. Because of this requirement Nelson had obtained a policy of insurance from the Hartford Accident and Indemnity Company which was in force at the time of the accident. This policy covered a car owned by the plaintiff. A rider, with restrictions not here material, was attached to this policy which provided for the payment of all damages for personal injuries imposed by law on the plaintiff arising from his operation of any other automobile.

Both French and Blackburn brought separate suits against Nelson to recover damages for their injuries and Blackburn's father sued for consequential damages. The Blackburn suits were brought December 4, 1939, and that of French on January 18, 1940. The former suits were settled by the Hartford Company under its policy. French obtained judgment against Nelson which was also paid by that company under its policy. The present action was brought by the plaintiff for the benefit of the Hartford Company to recover the amounts paid by that company in the Blackburn and French cases plus expenses and attorney's fees incurred in connection therewith. Various pleadings were filed by both parties and trial was had by the Court without a jury. Only two material issues were there presented for determination. The first was as to whether there had been a waiver by the defendant of the requirement of written notice of the accident contained in its policy. The second was whether Nelson was a member of the immediate family of Comolli at the time of the accident so as to be entitled to coverage under the defendant's policy. The Court found favorably to the defendant on the first question and adversely to it as to the second. Judgment was entered for the defendant with costs. Exceptions were taken and filed by both parties. We need discuss only those of the plaintiff which both parties concede present solely the issue of waiver.

The facts in the order in which they appear in the findings, pertaining to the question of waiver of written notice, are these: Thomas McTigue was at all times material, a soliciting agent for the defendant in the employment of Paige & Campbell. This firm were the general agents for the defendant and maintained offices in Barre and Montpelier. McTigue had sold the policy in question to Comolli.

The day after the accident McTigue learned of it from his brother and general gossip, and the major details thereof. “Within three days thereafter McTigue met Comolli (not by appointment) and the two had a casual conversation about the accident. This conversation was not intended by Comolli as a notice to McTigue or to the defendant of the accident.” During the conversation McTigue remarked to Comolli that he, McTigue, did not think that the Traveler's policy covered the accident, to which Comolli replied that he, Comolli, knew it did not.

Thereafter, and within a day or two of his conversation with Comolli, McTigue had a talk with Herman Campbell, a member of the firm of Paige and Campbell, wherein McTigue advised Campbell of the plaintiff's accident and the major details thereof and informed the latter that he had talked with Comolli and gave Campbell the substance of that conversation. Campbell told McTigue in substance that the Travelers did not cover the accident and would not be connected with it in any way. “McTigue did not intend his conversation with Campbell as official notice of the accident to the defendant company.”

Some few days after his talk with Campbell, McTigue and Comolli met (not by appointment) and on this occasion Comolli asked McTigue if he, McTigue, had heard anything from the Travelers to which McTigue replied, “No”. “There is no evidence tending to show when or in what manner Campbell's disclaimer of defendant's liability was communicated to Joseph Comolli.”

At all times material the Travelers kept at the offices of Paige and Campbell printed blanks for reporting to the defendant accidents such as the one in which the plaintiff was involved.

McTigue had authority from Paige and Campbell to do whatever was necessary with respect to the reporting of automobile accidents by assureds, including the furnishing of report blanks to them.

It was the ordinary, but not the exclusive, practice for Paige and Campbell, through McTigue and others, to assist their assureds in the preparation of report blanks, including the bringing to such assureds of the company's official report blank, or directing them to report to the company's office, when such a course appeared desirable. Comolli had, in general, a knowledge of such practice. He knew that his Traveler's policy required a written report of accidents.

Joseph Comolli never asked McTigue or Paige and Campbell or the defendant to do anything with reference to the Blackburn and French accidents.”

“No written notice of the accident of February 7, 1939, was given to the defendant or any of its agents by, or on behalf of Joseph Comolli at any time.”

“There was no conduct by the defendant or any of its agents of a character to induce Joseph Comolli to believe that a written report of the French and Blackburn accidents would not be required.”

“The defendant did not waive the policy requirement of written notice.”

The first written notice of the accident given to the defendant or any of its agents was by a letter of the plaintiff dated March 5, 1940. It was found that this notice was not given to the defendant as soon as practicable after the occurrence of the accident.

On the afternoon that the writs in the Blackburn cases were served, one Earle Covey, adjuster for the Hartford, telephoned to Birney Hall of Montpelier, Vermont, an adjuster for the company, on behalf of the plaintiff, Nelson, and advised the said Hall, whose duty it was to receive such writs and pass upon coverage made the subject of such suit, for the Travelers, that writs in the Blackburn cases had been served against Nelson, and Covey informed Hall that he, Covey, understood that Nelson was driving an automobile insured by the Travelers at the time that Nelson was involved in the accident in question, and Covey informed Hall that he wanted to know whether or not Hall would take the writ for the Travelers and have the Travelers' counsel enter an appearance and take care of the cases.

Hall at that time advised Covey that he, Hall, did not know too much regarding the circumstances but that he would look into it and advise Covey in a day or so.

A day or two after this telephone conversation Hall called Covey on the telephone and stated that he had checked the Traveler's policy and from information Hall had, it didn't appear that there was any coverage under the Travelers policy and the Travelers was not interested in the writs and that the writs did not need to be sent down.

Under the practice of the Travelers as to accidents such as the one involved in this case prior to and at the time of the accident in question and ever since, if Hall, its adjuster, was not consulted in the matter of determining coverage, that matter would be taken care of in the Paige and Campbell office and would go no further than that office.

It was the defendant's position when the letter of March 5, 1940, from Nelson to the defendant was received, that there was no coverage of Nelson under Comolli's policy in the defendant company. This position was adhered to by the defendant company from the time of the conversation between McTigue and Campbell.

Joseph Comolli never made any claim against the defendant, or any of its agents, in any way or form, on account of said accident.”

The plaintiff has briefed many exceptions. These relate to the findings as made, to the refusal to find as requested, and to questions of evidence. We will consider the exceptions in the order named rather than in their order as set forth in plaintiff's brief. Findings to which exceptions were taken are those above set forth as quoted statements.

The finding that the first conversation between McTigue and Comolli was of a casual nature and was not intended by Comolli as a notice to McTigue or to the defendant of the accident is excepted to on the ground that it is unwarranted by the evidence. This ground is without merit as there was ample evidence to support the finding. That part of the same to the effect that the conversation was casual...

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