United States Fidelity & G. Co. v. W. P. Carmichael Co.

• Decision Date: 18 December 1916
• Docket Number: No. 12015.,12015.
• Citation: 195 Mo. App. 93,190 S.W. 648
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. W. P. CARMICHAEL CO.
• Court: Missouri Court of Appeals

190 S.W. 648

195 Mo. App. 93

UNITED STATES FIDELITY & GUARANTY CO. v. W. P. CARMICHAEL CO.

No. 12015.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Rehearing Denied December 29, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by the United States Fidelity & Guaranty Company against the W. P. Carmichael Company. From an order granting plaintiff's motion for a new trial after verdict for defendant, defendant appeals. Affirmed.

Haff, Meservey, German & Michaels, of Kansas City, for appellant. Ball & Ryland, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff is an insurance indemnity company and on defendant's application issued to it two policies of insurance; one against loss by reason of accidents to its own employés, and the other against loss by reason of accidents to persons not its employés. This action was instituted by petition in two counts for unpaid balance of premiums due on the policies. Defendant had refused to pay these premiums for the reason that plaintiff had refused to defend a certain action by one Boardman against defendant for an accident happening to him as a result of defendant's negligence while performing certain public work, whereby defendant was compelled to defend itself, which it did by compromising with him for $1,613.14. Defendant therefore filed its counterclaim to plaintiff's petition in that sum. A verdict was returned for defendant on its counterclaim, less the premiums claimed in the petition. Plaintiff asked and was granted a new trial, and defendant appealed from that order.

The trial court stated the following reasons for granting a new trial, viz.:

"For giving and refusing instructions for defendant. For the reason that plaintiff under the pleadings and the evidence was entitled to a peremptory instruction on defendant's counterclaim, for the reason that the counterclaim was based on a contract alleging specific performance on the part of defendant of the conditions of said contract, and there being no proof offered of the compliance with the provisions of the contract creating a liability under which defendant claimed in its counterclaim. (And) That the verdict is contrary to the evidence and the weight of the evidence."

The last reason assigned by the court will compel us to support the order for a new trial if there was any substantial evidence against the verdict, unless, on the record, no other verdict could have been rendered save one in favor of the counterclaim.

The policy to which the counterclaim applies contains a clause requiring notice, in these words:

"Upon the occurrence of an accident the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company, at its home office or to the agent who has countersigned this policy."

Plaintiff claims that this provision was not complied with, and considers that, thereby, defendant lost its right to be indemnified, while defendant insists that, from three independent standpoints, such provision presents no hindrance to its claim: First, that it gave the notice as required; second, that notice was waived; and, third, that though it did not give notice, and though there was no waiver, there is no provision in the policy for a forfeiture for such default.

The proof of notice, if defendant's office clerk and stenographer is to be believed, was convincing. She testified explicitly that she wrote and mailed the notice immediately after the accident; directed, stamped, and mailed it to plaintiff's agent. She stated she distinctly remembered the Boardman accident, that she always mailed notices, and that she did so in this case, but that she had no specific and separate recollection of putting this particular notice in the mail.

In 29 Cyc. 240, 241, it is stated that:

"On an issue as to whether notice of the assessment was given, evidence of the secretary, whose duty it was to make and mail notices, as to his methods in preparing and sending them, is admissible, although he has no distinct recollection of sending the particular notice in question."

To the same effect is 7 Encyc. of Evidence, 716, and cases there cited.

In Backdahl v. Grand Lodge, 46 Minn. 61, 48 N. W. 454, the court said:

"The...