Sherwood Ice Co. v. U.S. Cas. Co.

• Decision Date: 30 April 1917
• Docket Number: No. 4953.,4953.
• Citation: 40 R.I. 268,100 A. 572
• Parties: SHERWOOD ICE CO. v. UNITED STATES CASUALTY CO.
• Court: Rhode Island Supreme Court

100 A. 572

40 R.I. 268

SHERWOOD ICE CO.

v. UNITED STATES CASUALTY CO.

No. 4953.

Supreme Court of Rhode Island.

April 30, 1917.

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Action by the Sherwood Ice Company against the United States Casualty Company. From a directed verdict for defendant, plaintiff excepts. Exception overruled, and case remitted for entry of judgment on verdict.

Boss & Barnefield, of Providence, for plaintiff. John Henshaw, of Providence, for defendant.

BAKER, J. This is an action of assumpsit commenced in the district court of the Sixth judicial district, in which a jury trial was claimed on entry day. It is brought on an indemnity insurance policy and on the common counts to recover a certain sum, to wit, $351.49, alleged to have been paid out by the plaintiff under and by virtue of the provisions of the Workmen's Compensation Act on account of personal injuries to one of its employés by accident arising out of and in the course of his employment, which said sum the plaintiff alleges the defendant should pay to and indemnify it under the terms of said policy. The case was tried in the superior court before a justice sitting with a jury. Aside from the policy in question offered in evidence, the testimony in the case consists wholly of admissions read into the record as follows:

"The defendant admits the following facts: That the defendant on the 11th day of June, 1912, issued to the plaintiff corporation the defendant's policy of liability insurance No. T-706732, called 'teams liability policy,' to which was attached 'teams property damage indorsement No. TDE-566,' and also a workmen's compensation indorsement called 'combination coverage,' which said workmen's compensation indorsement became effective on the 1st day of October, 1912, said policy and indorsements being introduced in evidence as Plaintiff's Exhibit A.

"That during the time said policy and indorsements were in force, namely, on the 15th day of March, 1913, one Joseph Plante, who was one of the drivers referred to in statement 8 of said policy, while in the employ of the plaintiff as a driver of one of its ice wagons, received a personal injury by accident arising out of and in the course of his employment with said plaintiff, said injury being a fracture of the left patella.

"That the plaintiff has in all things observed, performed, fulfilled, and kept all the conditions in said defendant's policy of insurance incumbent upon said plaintiff to observe, perform, fulfill, and keep, except that said defendant does not admit that the plaintiff gave immediate written notice of said accident to said Plante to the defendant, in accordance with requirements in said policy.

"That at the time of receiving said injury said Joseph Plante's average weekly wages were $11.54, and said Joseph Plante. was confined in a hospital because of said injuries for a period of 18 weeks, and was disabled from work in all for a period of 64 weeks, of which 54 were weeks of total incapacity for work and 10 were weeks of partial incapacity for work, so that under and by virtue of the provisions of the Rhode Island Workmen's Compensation Act the plaintiff, as employer, became liable to pay to said Joseph Plante, as employé, a weekly compensation and bills for hospital and medical services and for medicines, amounting in all to the sum of $351.49, the which payments the said plaintiff, as employer, was ordered and decreed by said superior court to make to said Joseph Plante as employé, said order and decree being entered by said superior court on the 19th day of April, 1913, all of which said payments were made after the entry of said decree. The last of said payments was made on June 4, 1914.

"That said payments so ordered by said court were proper and necessary payments under said Workmen's Compensation Act, based upon the actual injury and disability of said Joseph Plante.

"That at the time of said injury to said Plante, namely, on March 15, 1913, said plaintiff also carried a certain other policy of liability insurance, with similar compensation indorsement, in the Travelers' Insurance Company of Hartford, Conn., which said Travelers' policy covered other operations of the plaintiff than were covered in said policy of said defendant company. That said plaintiff, by mistake as to which of its said insurance policies covered said plaintiff's liability in respect to said accident to said Plante, on March 15, 1913, forwarded its written report and notice of said accident to said Travelers' Insurance Company, instead of to said defendant company.

"That said mistake was not discovered by said plaintiff until the month of August, 1913, and immediately upon the discovery of said mistake said plaintiff, through its agent, sent a written report and notice of said accident to said Plante to the said defendant company, on the 4th day of August, 1913, said written notice and report being received by said defendant company on the 5th day of August, 1913, at the defendant's home office in New York City.

"That with said written notice and report said plaintiff's, agent sent to said defendant company a request that under the terms of said defendant's policy said defendant company reimburse said plaintiff for the payments theretofore so made by said plaintiff to said Plante, and that said defendant company also pay to said Plante the further and future payments that were to become due under said order and decree of said superior court, both of which said requests said defendant company refused, denying liability therefor.

"That the Travelers' Insurance Company made certain of the payments to said Joseph Plante and said plaintiff made the balance of the payments to said Joseph Plante ordered and required by said decree of said superior court, which total the sum of $351.49, and that prior to the commencement of this action said plaintiff reimbursed the Travelers' Insurance Company for the payments made by it.

"That said defendant, the United States Casualty Company, though requested, has not indemnified the said plaintiff for its said expenditure of $351.49, and has not repaid said amount to said plaintiff."

At the conclusion of the testimony the defendant moved for the direction of a verdict in its favor, which motion was granted. The plaintiff excepted to this ruling, and the case is before this court on such exception. One of the conditions of said policy is as follows:

"Condition B. When any accident happens the assured shall give immediate written notice thereof to the company at its home office in New York City or its duly authorized agent. If any claim is made on account of such accident the assured shall give notice thereof. If any suit is brought to enforce such a claim the assured shall immediately forward to the company at its home office in New York City every summons or other process as soon as the same is served on him, and the company shall defend such suit (whether groundless or not) in the name and on behalf of the assured. All expenses (legal and otherwise) incurred by the company in defending such suit and all court costs assessed against the assured shall be paid by the company (whether the verdict is for or against the assured) regardless of the limits of liability expressed in condition M. The assured shall always give to the company all co-operation and assistance possible. The company shall have the right to settle any claim or suit at its own cost at any time."

The court directed a verdict for the defendant on the ground that the evidence showed that the plaintiff had not complied with the foregoing condition by failing to give "immediate written notice" of the accident in question to the defendant.

The plaintiff urges that the question of whether it gave notice in accordance with the provisions of the condition was a question for the jury, and not for the court.

Referring to the time when notice should be given under provisions of this character in insurance policies, the rule of interpretation is stated in 14 R. C. L. 1329, as follows:

"A provision that notice must be given 'immediately' or 'forthwith' or 'as soon as possible' means that the notice must be given within a reasonable time under the circumstances of the case. What is a reasonable time is a question of law when the facts are undisputed and the inferences certain, but when the facts are disputed or the inferences uncertain it is a question for the jury."

This same rule as to whether the words "a reasonable time" is a question of fact for the jury or a question of law for the court has been applied by this court in determining whether a promissory note payable on demand is overdue for the purposes of negotiation in Bacon v. Harris, 15 R. I. 599, 603, 10 Atl. 647, 650, where it said: "Whether what is reasonable time is a question of law for the court, or a question of fact for the jury, is a matter which has been a good deal controverted; but undoubtedly the better view is that, * * * except where the facts are few, simple, and undisputed, in which case the court shall decide, it should be left to be decided by the jury under the direction of the court, upon the particular circumstances of the case."

See, also, Guckian v. Newbold, 23 R. I. 553, 556, 51 Atl. 210, where the same question arose.

In the former case it was held to be a question for the jury; in the latter case a question of law for the court.

The plaintiff has cited a large number of insurance cases in which the question of reasonable time in connection with a requirement of "immediate notice" has been held to be one for the jury. In a large majority of them notice was given within eight days or less. In three cases in which the delay was 31, 44, and 48 days respectively, in one where the delay was 4 months and 4 days in giving the notice, and in another in which there was 11 months' delay, there were the excuses of disability, ignorance of the...