Yanago v. Aetna Ins. Co.

• Decision Date: 14 March 1935
• Citation: 164 Va. 258
• Court: Virginia Supreme Court
• Parties: ANDREW YANAGO v. AETNA LIFE INSURANCE COMPANY.

Page 258

164 Va. 258

ANDREW YANAGO v. AETNA LIFE INSURANCE COMPANY.

Supreme Court of Virginia, Richmond.

March 14, 1935.

Present, Campbell, C.J., and Holt, Epes, Gregory, Browning and Chinn, JJ.

1. AUTOMOBILE INSURANCE — Provisions of Policy — Provision for Immediate Notice to Insurer of Accident — Meaning of "Immediate" — Case at Bar. — The instant case was an action to recover of defendant company the amount of a judgment rendered against the owner and operator of a truck used by a partnership, holder of a policy from the defendant company protecting the partners and their truck drivers from claims for personal injuries. The policy provided that assured should give immediate notice to the company or its agent of the occurrence of any accident.

Held: That while immediate, as used in the policy, does not mean instantaneous, it does call for notice with reasonable dispatch.

2. AUTOMOBILE INSURANCE — Provisions of Policy — Provision for Immediate Notice to Insurer of Accident — Question of Reasonable Time Is for Jury — Case at Bar. — The instant case was an action to recover of defendant company the amount of a judgment rendered against the owner and operator of a truck used in the business of a partnership which carried insurance with the defendant company protecting the partners and their truck drivers against claims for personal injury. Defendant denied liability on the ground that the assured failed to comply with a provision in the policy that assured should give immediate notice to the company or its agent of the occurrence of any accident. The jury returned a verdict for plaintiff which was set aside by the court as contrary to the law and the evidence.

Held: That the questions of reasonable time and the necessity for prompt action, in fair limits, are for the jury.

3. AUTOMOBILE INSURANCE — Provision in Policy for Immediate Notice to Insurer of Accident — Question Whether Assured Mailed Notice of Accident Was for Jury — Case at Bar. — The instant case was an action to recover of defendant company the amount of a judgment rendered against the owner and the operator of a truck employed by a partnership carrying insurance with the defendant company which protected the partners and their truck drivers against claims for personal injury. Defendant contended that the assured failed to comply with a provision of the policy that assured should give immediate notice to the company or its agent of the occurrence of any accident. One of the partners testified that he wrote and mailed a letter, on the night of the day the accident occurred, to the agents through whom the policy was written, notifying them of the accident. When the notice of motion was executed on the truck driver, about two months after the accident, one of the partners took a copy to the agents of the company and then to an adjuster who dictated a memorandum which was signed by the partner and in which it was stated that notice of the accident was first given when the notice of motion was executed. In the driver's report to the company of the accident he stated that due to an oversight the partners failed to report the accident until the notice of motion was executed. The jury returned a verdict for plaintiff which was set aside by the trial court as contrary to the law and the evidence.

Held: That the statement of the partner that he wrote and mailed a letter at the time of the accident, giving notice thereof, was neither incredible nor inherently improbable, but was at the most but against the weight of the evidence and therefore should have been submitted to the jury.

4. AUTOMOBILE INSURANCE — Provision of Policy tht Assured Give Immediate Notice of Accident — Testimony that Notice Was Mailed and Testimony that It Was Not Received — Receipt of Notice Is Question for Jury — Case at Bar. — The instant case was an action to recover of defendant company the amount of a judgment rendered against the owner and operator of a truck employed by a partnership carrying insurance with the defendant company which protected the partners and their truck drivers against claims for personal injury. Defendant contended that the assured had failed to comply with a provision of the policy requiring assured to give immediate notice to the company or its agent of the occurrence of any accident. One of the partners testified that he wrote and mailed a letter, on the night of the day the accident occurred, to the agents through whom the policy was written, notifying them of the accident. One of the agents testified that the letter was never received. The jury returned a verdict for plaintiff which was set aside by the trial court as contrary to the law and the evidence.

Held: That, strictly speaking, there is no necessary conflict between the testimony of a witness who says that he mailed a letter and that of an addressee who says that it was not received, for letters do miscarry, but their number, relatively speaking, is small indeed. Therefore the weight of authority is to the effect that their receipt is a jury question, and this is the law in Virginia.

5. AUTOMOBILE INSURANCE — Provision of Policy that Assured Give Immediate Notice of Accident — Method of Giving Notice — Case at Bar. — The instant case was an action to recover of defendant company the amount of a judgment rendered against the owner and operator of a truck employed by a partnership which carried insurance with the defendant company protecting the partners and their truck drivers against claim for personal injuries. Defendant contended that assured failed to comply with a provision of the policy requiring assured to give immediate notice to the company or its agents of the occurrence of any accident. One partner testified that he wrote and mailed a letter, on the day of the accident, to the agents through whom the policy was written, notifying them of the accident. One of the agents testified that the letter was never received and it was urged that no method of notice being prescribed assured elected at their peril to give notice by mail. The agents' office was nearly 200 miles from the point where the trucks were used.

Held: That since the agents knew that the trucks were being used nearly 200 miles from their office and it was usually the custom to serve notice on the office which issues the policy, it must have been understood in the beginning that the method of giving notice by mail might be adopted.

6. AUTOMOBILE INSURANCE — Provision of Policy that Assured Give Immediate Notice of Accident — Failure to Give Notice of Service of Process After Insurer Disclaims Liability — Case at Bar. — The instant case was an action to recover of defendant company the amount of a judgment rendered against the owner and operator of a truck hired by a partnership which carried insurance with the defendant company protecting the partners and their truck drivers from claims for personal injuries. The defendant company contended that the assured failed to comply with a provision of the policy requiring immediate notice to be given the company or its agents of the occurrence of any accident. One partner testified that he wrote and mailed a letter, on the day of the accident, to the agents through whom the policy was written, but one of the agents testified that it was never received. Notice of motion was executed on the truck driver about two months after the accident and the partners delivered a copy to an adjuster who subsequently informed the assured that the defendant company declined to handle the case because of the delay in giving notice. The first motion not having been executed on the owner of the truck, plaintiff thereafter instituted a second motion, proper service was had and the judgment rendered upon which this action was based. Defendant contended that it was not liable because not notified of the second motion.

Held: That defendant had theretofore disclaimed any liability and it would have been a vain thing to have notified it of the impending action about a matter with which it was not concerned.

7. AUTOMOBILE INSURANCE — Provision of Policy that Assured Give Immediate Notice of Accident — Instructions — Instructions that Notice Must Have Been Received — Case at Bar. — The instant case was an action to recover of the defendant company the amount of a judgment rendered against the owner and operator of a truck hired by a partnership which carried insurance with the defendant company protecting the partners and their truck drivers from claims for personal injuries. Defendant denied liability on the ground that the assured failed to comply with a provision in the policy requiring immediate notice to be given to the company or its agents of the occurrence of any accident. One partner testified that on the day of the accident he wrote and mailed a letter to the agents through whom the policy was written, notifying them of the accident, but one of the agents testified that the letter was never received. The trial court refused the following instruction for defendant: "The court instructs the jury that if you believe from the evidence that the letter claimed by McMannaway (the partner) to be sent on January 3, 1932 (the date of the accident), was not received by the firm of Scott & Bond (the agents), you shall find for the defendant." An instruction given for plaintiff read: "The court instructs the jury that if they believe from the evidence that notice of the accident was sent to the defendant insurance company through the United States mails on the day following the happening of the accident, then the presumption is that such notice was delivered, which, however, may be rebutted."

Held: That the whole case turned upon the receipt of the letter, and while the instruction given indirectly told the jury that the fact that it was mailed was not sufficient, defendant had a right to have the jury told that if, as a matter of fact, it was not received, the plaintiff had no case, and that...