St. Louis Architectural Iron Co. v. New Amsterdam Cas. Co., 8710.

• Decision Date: 28 April 1930
• Docket Number: No. 8710.,8710.
• Citation: 40 F.2d 344
• Parties: ST. LOUIS ARCHITECTURAL IRON CO. v. NEW AMSTERDAM CASUALTY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

40 F.2d 344 (1930)

ST. LOUIS ARCHITECTURAL IRON CO. v. NEW AMSTERDAM CASUALTY CO.^*

No. 8710.

Circuit Court of Appeals, Eighth Circuit.

April 28, 1930.

John P. Leahy, of St. Louis, Mo. (James J. O'Donohoe, of St. Louis, Mo., on the brief), for appellant.

Raymond J. Lahey, of St. Louis, Mo. (James C. Jones, Lon O. Hocker, Frank H. Sullivan, William O. Reeder, and James C. Jones, Jr., all of St. Louis, Mo., on the brief), for appellee.

Before BOOTH and GARDNER, Circuit Judges, and SANBORN, District Judge.

BOOTH, Circuit Judge.

This is an appeal from a judgment after verdict in favor of appellee, defendant below. The action was brought on a policy of indemnity insurance issued by appellee to appellant in the sum of $10,000, covering "loss from the liability imposed by law upon the assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered while this Policy is in force, including death resulting at any time therefrom, by any employe or employees of the Assured, except such as are excluded by Condition `A' hereof, while at the places described in the Schedule, in and during the prosecution of the work described in said Schedule, including drivers of teams and their helpers wherever employed in the service of the Assured, subject to the following conditions." The period during which the policy was in force was from October 11, 1922, to October 11, 1923.

May 3, 1923, George Timmerman, while in the employ of appellant, sustained personal injuries. He brought suit against appellant in the state court and recovered a verdict and judgment for $15,000, which with interest and costs amounted to $18,126. This sum was paid by appellant. The appellee refusing to make payment under the indemnity policy, the present action was brought.

The defense set up by appellee in its answer was that it was not liable under the policy by reason of nonfulfillment by appellant of condition B contained in the policy, and which read as follows:

"Condition B. Upon the occurrence of an accident the Assured shall give immediate written notice thereof with the fullest information obtainable at the time, to the Executive Office of the Company in New York City or Baltimore, Md., or to its duly authorized agent. If a claim is made on account of such accident the Assured shall give like notice thereof with full particulars. The Assured shall at all times render to the Company all co-operation and assistance in his power."

The appellee also alleged in its answer that, in the action brought by Timmerman against appellant, the appellee had assumed the defense at the request of appellant, but with the written agreement with appellant that by so doing appellee should not be considered to have waived its right to assert in any action brought against it on the indemnity policy that there was no liability on the part of appellee thereunder, because of the failure of appellant to give immediate written notice to appellee of the accident and injuries.

Appellant in its reply alleged that appellee by taking full charge of the defense of the action brought in the state court by Timmerman, and by preventing appellant from interfering with any negotiations for settlement of the Timmerman case, and by preventing appellant from having its own counsel take part in the trial of said case, had waived its right, if such right existed, to insist on the defense of nonfulfillment of condition B; and also waived any rights its might have under the nonwaiver agreement.

On the trial, the main issue of fact was as to the time within which the notice of the accident was sent to appellee. There was evidence tending to show that the notice was mailed to appellee by Zeis, foreman of appellant, under whom Timmerman worked, within ten days or two weeks after the date of the accident. There was also evidence tending to show that no notice of the accident was received by appellee until September 5, 1923 — some four months after the accident — when the report made by Zeis was received through the mail. No proof was offered as to the allegations of the reply, other than that appellee took and retained charge of the defense of the Timmerman action until after entry of judgment therein.

On this state of the evidence the court instructed the jury as follows:

"Now, the policy contained certain provisions, and we are not concerned with more than one of them, as I see it, and that one provision is the gist and crux of this case, and so I will read it to you. The policy contained this provision: `Upon the occurrence of an accident, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time to the executive office of the Company in New York City or Baltimore, Maryland, or to its duly authorized agent.' It was the duty, thus you see, of this plaintiff to give notice of this accident. * * *

"The question, and the sole question here, seems to be the time in which the notice was sent. It was incumbent, I think I said, upon the plaintiff to observe this condition of the policy, and you have to decide in this case whether it did or whether it did not comply with this provision in the policy, and I direct your attention to that and state to you that it is the question concerning which your deliberations will no doubt surround, and it is the question that you will have to decide in this case, as to whether or not the plaintiff has complied with this provision of the policy, and with reference to that, the Court will instruct you in the language of some instructions which the counsel have submitted to the Court.

"The Court charges you that the words `immediate written notice,' as used in the policy in evidence, mean notice given within a reasonable time, having in view all the circumstances of the case. * * *

"* * * If the jury believe and find from the evidence that the plaintiff did not give written notice to the defendant of the accident and injuries sustained by the said George Timmerman until on or about the fifth day of September, 1923, then the Court instructs you that plaintiff is not entitled to recover, and your verdict must be for the defendant."

The jury returned a verdict for the defendant, appellee here.

The main points raised by the assignments of error and relied upon in this court relate to the charges of the court above quoted, and to the refusal to give the following requested charge, viz.:

"The Court, at the request of plaintiff, charges you that in arriving at your verdict you should not take into consideration whether or not plaintiff gave defendant notice of injuries to George Timmerman, but you should disregard the same."

One contention of appellant is that the liability of the appellee under the indemnity insurance policy was not affected by the failure to give immediate written notice of the accident in accordance with condition B, because there was no provision of forfeiture in the policy for failure to give the notice. We are of opinion, however, that such a forfeiture provision is not necessary where, as in the case at bar, the language of the contract between the parties plainly makes the giving of the notice of the accident a condition precedent to liability on the part of the insurance company.

The case of National Paper Box Co. v. Insurance Co., 170 Mo. App. 361, 156 S. W. 740, involved facts similar in substance to the case at bar. The provision for notice was held to be a condition precedent to liability under the policy.

In U. S. Fid. & Guar. Co. v. Carmichael Co., 195 Mo. App. 93, 190 S. W. 648, which involved an action for unpaid premiums on two policies of indemnity insurance, defendant had refused to pay the premiums for the alleged reason that the company had refused to defend a certain suit covered by the policy, and set up a counterclaim for the amount paid on account of the suit. Plaintiff claimed that the provision in regard to notice (similar to that in the case at bar) was not complied with, and that therefore defendant had lost its right to be indemnified. Defendant contended that it had not lost such right, as there was no provision in the policy for forfeiture. The court said (page 97 of 195 Mo. App., 190 S. W. 648, 649):

"The second point, that the absence from the policy of a stipulation for a forfeiture, if immediate notice is not given, prevents plaintiff from interposing a defense predicated on the failure to give such notice in time, must be ruled against defendant. In Box Company v. Insurance Co., 170 Mo. App. 361, 156 S. W. 740, we applied the rule, which we found supported by the great weight of authority, that a provision for notice in an employer's liability policy is of the essence of the contract, and that a breach of such provision by the assured will prevent a recovery under the policy, not on the ground of forfeiture, but on the ground of nonperformance of a condition precedent."

In Metropolitan Cas. Ins. Co. v. Johnston (C. C. A.) 247 F. 65, involving an accident insurance policy which contained a provision for notice reading as follows: "Written notice must be given the company * * * of any accident or injury for which a claim is to be made, * * * within twenty-one days from the date of the...