Silver v. Indemnity Ins. Co. of North America

• Decision Date: 20 February 1951
• Citation: 79 A.2d 355,137 Conn. 525
• Court: Connecticut Supreme Court
• Parties: SILVER v. INDEMNITY INS. CO. OF NORTH AMERICA. Supreme Court of Errors of Connecticut

Page 355

79 A.2d 355

137 Conn. 525

SILVER v. INDEMNITY INS. CO. OF NORTH AMERICA.

Supreme Court of Errors of Connecticut.

Feb. 20, 1951.

Donald F. Keefe, New London, with whom, on the brief, was Morris Tyler, New Haven, for appellant (defendant).

David M. Reilly, New Haven, with whom was David M. Reilly, Jr., New Haven, for appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The plaintiff brought this action, upon a policy of public liability insurance issued by the defendant, to recover the amount of a judgment which she was compelled to pay to a person injured by a fall in her store. Judgment was rendered upon the verdict for the plaintiff. The defendant has appealed from the court's denial of its motion to set aside the verdict and from the judgment.

The plaintiff owned a store in New Haven where she sold ladies's clothing at retail. On September 1, 1946, the defendant issued a policy insuring her against loss from liability imposed by law for damages on account of injuries suffered by any person in the store arising out of the conduct of the business. The policy provided that the defendant would defend any suit brought against the plaintiff to recover for such injuries and that it would pay any judgment and costs in such an action up to $15,000. On September 10, 1946, while the policy was in force, Mary E. Gillis, who was lawfully in the store, fell at a place where there was a step between floor levels. The plaintiff's husband, who was in charge of the store at the time, saw Mrs. Gillis fall and assisted her to a chair. Shortly after, two visiting salesmen who had meantime come in carried her in the chair out to her daughter's car. The first notice that the plaintiff had of any claim for injury arising out of the accident, or of the name or address of the person who had fallen, was in March, 1947, upon the receipt of a letter from an attorney stating that Mrs. Gillis had received a fractured hip as a result of the fall. The plaintiff turned this letter over to the defendant, which instituted an investigation under a reservation of rights. It terminated this on April 23, 1947, by a disclaimer of coverage. Subsequently, Mrs. Gillis brought suit against the plaintiff, who forwarded the writ and complaint to the defendant. It refused to defend. The plaintiff was accordingly obliged to employ her own counsel for this purpose. On June 8, 1948, Mrs. Gillis recovered judgment against the plaintiff for $2750 plus $91.75 costs. Condition B of the policy provides: 'When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.' These facts, contained in the plaintiff's claims of proof, are undisputed.

The principal question to be decided, is: Did the court err in sustaining and allowing the jury's determination as a question of fact that the plaintiff gave notice to the defendant 'as soon as practicable' after the accident, as required by the policy? The controlling principles of law are clearly set forth, with citation of abundant supporting authority, in our opinion in Baker v. Metropolitan Casualty Ins. Co., 118 Conn. 147, 171 A. 7. In that case, the policy condition as to notice included the identical wording 'as soon as practicable'. As we there stated, 118 Conn. at page 150, 171 A. at page 8, these words mean 'as soon as can reasonably be expected under the circumstances.' We then declared and discussed the general rule as follows: 'The duty to give notice does not arise unless and until facts develop which would suggest to a person of ordinary and reasonable prudence that liability may have been incurred, and is complied with if notice is given within a reasonable time after the situation so assumes an aspect suggestive of a possible claim for damages. * * * The determinative question is whether the facts known to the assured would require a person of ordinary and reasonable prudence to believe that liability because of injury may arise, and he is entitled to have all of the facts and attendant circumstances considered.' After stating that 'circumstances may be such as to explain or excuse delay in giving notice and show it to be reasonable', we concluded, 118 Conn. at page 153, 171 A. at page 9: 'When the facts are undisputed and one conclusion only is reasonably possible, the question of compliance with a provision for notice is one of law; otherwise it is a question of fact.'- Whether the court erred in denying the defendant's motion to set aside the verdict depends upon the application of these principles to the evidence. Interpreting this most favorably for the plaintiff, as we must in this connection, the jury could properly have found these further facts bearing upon the plaintiff's duty as to notice: Mrs. Gillis came into the store with her daughter, who entered a booth to try on a garment and left her mother standing on the upper level, which was one step above the lower portion. Mrs. Gillis appeared to be a woman about seventy years old, weighing in the neighborhood of 100 pounds. She turned, stepped off the step, and fell, landing on her buttocks in a sitting posture on the floor at the lower level. After being helped to a chair, she first said she was hurt and had broken her hip and then stated that she was not hurt and was all right. Her daughter, coming out of the booth, said to her, 'I know I shouldn't have left you alone.' Mrs. Gillis told her to continue trying on dresses, but she did not. The plaintiff's husband offered to get a doctor, but Mrs. Gillis declined....