Parrish v. Phillips
| Decision Date | 06 December 1938 |
| Parties | PARRISH v. PHILLIPS et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Winnebago County; Henry P. Hughes, Judge.
Action by Perry Parrish against Edward Phillips and the Commercial Casualty Company, for injuries suffered in automobile accident. From a judgment for plaintiff, defendant Commercial Casualty Company appeals.-[By Editorial Staff.]
Reversed and remanded with directions.
Action commenced by plaintiff-respondent on July 19, 1937, in which defendant Phillips and his insurance carrier, Commercial Casualty Co., a foreign corporation, were made defendants. It is alleged and so found that the plaintiff was struck and injured by an automobile owned and operated by defendant Phillips, at the intersection of Tayco and Main Streets in the city of Menasha, on the morning of December 23, 1936. The defendant Phillips was insured under a liability contract with the defendant Commercial Casualty Co., a foreign corporation. Phillips made no report of the accident to his insurance carrier until January 26, 1937, thirty-three days after its occurrence. The insurance carrier, after learning of the accident, notified Phillips that it was handling the investigation with a full reservation of its rights. When this action was commenced, the defendant Commercial Casualty Co. promptly notified the defendant Phillips that it was asserting a defense in a separate answer, based on his failure to comply with the terms and conditions of the policy in regard to notice; also advised him to retain his own counsel to protect his interests. Phillips did not appear in the action by counsel or serve an answer.
There were separate trials, the first trial involving the issue, whether or not the insurance carrier was prejudiced or damaged by reason of the delayed notice of the accident given by Phillips. Upon this issue, the following questions were submitted:
“Was the notice of the accident which occurred on December 23rd, 1936, by the defendant, Edward Phillips, to the defendant, Commercial Casualty Co., on the 26th day of January, 1937, given as soon as practicable as provided by the policy of insurance then in force?”
The court answered this question, “No”.
Question No. 2 was submitted to the jury and reads as follows:
“Was the defendant, Commercial Casualty Company, prejudiced or damaged by the failure of the defendant, Edward Phillips, to give notice of said accident as soon as practicable after the occurrence thereof?”
The jury answered this question, “No”.
The Commercial Casualty Co. moved for a directed verdict in its favor on the first trial; also made and filed the usual motions after verdict.
The second trial involved the issues of negligence and damages, upon which a special verdict was submitted, the first question being:
“Did the automobile of the defendant, Edward Phillips, collide with and injure the plaintiff, Perry Parrish, on the 23rd day of December, 1936, at the intersection of Main St. and Tayco St. in the City of Menasha?”
This question was answered, “Yes”, by the court.
By its answers to the several remaining questions of the special verdict, the jury found that the defendant Phillips, immediately before and at the time of the collision, failed to exercise ordinary care in the operation of his automobile:
(a) With respect to keeping a proper lookout.
(b) With respect to keeping his automobile under proper control.
(c) With respect to the speed at which he operated his automobile.
(d) With respect to failing to yield to the plaintiff the right of way at the intersection.
The jury further found that such failure on the part of the defendant Phillips to exercise ordinary care in the several respects mentioned was a natural and probable cause of the collision. The jury found no negligence on the part of the plaintiff and assessed damages as follows:
(a) For medical and hospital expenses: $138.15.
(b) For disabilities, present and future: $4000.
(c) For pain and suffering: $750.
Following the second trial, the usual motions were made after verdict. The several motions made by appellant were denied and judgment ordered in favor of the plaintiff against both defendants. Judgment was accordingly entered on April 9, 1938, for the sum of $5,167.63, from which judgment, the defendant Commercial Casualty Co. appeals. Further material facts will be stated in the opinion.
O'Leary & Joyce, of Neenah, for appellant.
Barber, Keefe, Patri & Stillman, of Oshkosh, for respondent.
The errors assigned by the appellant are that the court erred (the first trial):
(1) In not directing a verdict in favor of the defendant Casualty Company at the close of the testimony.
(2) In denying defendant Casualty Company's motion for judgment notwithstanding the verdict rendered by the jury, for the reason that the answer to Question No. 2 is not supported by the credible evidence.
(3) In refusing to give instructions requested by defendant Casualty Company.
(4) In giving erroneous instructions which were prejudicial to said defendant.
And as to the second trial:
(1) In refusing to reduce the damages awarded by the jury or grant a new trial.
(2) In refusing to grant a new trial because of the improper and prejudicial argument to the jury by counsel for the plaintiff, and the court's failure to instruct the jury in regard thereto.
The insurance policy issued to the defendant Phillips contains the following provisions:
The foregoing provisions are modified and deemed amended by the following statutes:
Section 204.29(1), Statutes, provides:
“No licensed accident or casualty insurance company in Wisconsin shall limit the time for the service of any notice of injury to less than twenty days [etc.], ***”
[1] It appears that the insurance policy in question was issued to the defendant Phillips through the company's agent who resided in the city of Neenah at the time the policy was issued and at all subsequent times. It is conceded that Phillips failed to give any notice of the accident to the insurance carrier or to its local agent, for a period of thirty-three days following the accident. It is true that Phillips was not required to notify his insurance carrier within the twenty day period...
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...was put as follows in Foster v. Fidelity & Casualty Co. of N.Y., 99 Wis. 447, 451, 75 N.W. 69, 70 (1898), and in Parrish v. Phillips, 229 Wis. 439, 444, 282 N.W. 551, 553 (1938), one of the cases cited in Allen: '. . . Where the facts are uncertain or disputed, and the inferences doubtful, ......
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