Lewis v. Commercial Casualty Insurance

Pattison, J., delivered the opinion of the Court. This appeal involves the proper construction of a clause of an automobile liability policy issued by the appellee, the Commercial Casualty Insurance Company, to the appellant, Jack Lewis. The clause of the policy referred to is as follows: “Upon the occurrence of an accident or loss covered by this policy, the assured shall give immediate written notice thereof, with the fullest information obtainable at tbe time to tbe company or its duly authorized agent. If a claim for damages is made upon the assured on account of such aceident, the assured shall give like notice thereof with full particulars.” The policy was issued on the 21st day of August, 1918, and on the 13th day of November, of the same year, while the policy was in force, the plaintiff’s chauffeur, a brother, while driving the insured car about the employer’s business, injured one Thomas Fitzpatrick, who subsequnetly, on the 8th day of January, 1919, died from the injuries so received.

Fitzpatrick, at the time of the accident which resulted in his death, was working for the Crane Company, which carried a compensation insurance with the Globe Indemnity Company. After appropriate proceeding's before tbe State Industrial Aceident Commission, compensation was awarded the widow of Fitzpatrick, which was paid by the Globe Indemnity Company and thereafter, on the 4th day of Janu ⁴⁷⁴ axy, 1919, the following demand was made by said company upon the owner of the insured automobile-: “Mr. Jack Lewis, “Baltimore, Md. “Dear Sir: “On November 13th, 1918, an automobile belonging to you and operated by Joseph Lewis, struck pipe being-handled by Thomas Pitzpatrick, an employee of Crane Company, in front of 624-629 W. Pratt St. He was injured by this accident and is now about to die. The Globe Indemnity Company, insurers of Crane Company, will hold you responsible for this accident and loss and. wish you to consider this as notice of such. “Yours truly, “(Signed) Harry H. Wilson, Atty.” Upon the receipt of the above letter, Lewis called the appellee over the ’phone at its office in the American Building, telling it of the demand upon him, and in reply thereto', he was requested to send the letter to the company, which he did. Thereafter Mr. Wells, of the firm of Wells & McCormick, at that time counsel for the appellee, called upon the appellant a-t his office in the city, and was told by Lewis that he was not at home at the time of the accident, and was therefore unable to tell him anything about it, but referred him to his brother, “the chauffeur,” and from him Mr. Wells obtained a sworn statement as to how the accident occurred.

In this statement he said: “I was going- west on Pratt Street at a speed of about twelve miles an hour, and when I approached the plant of Crane & Company I noticed freight cars standing in the centre of the street, and also noticed a team standing near the freight ear which was being loaded. This team blocked the right side of the street, and I was forced to pull over to the left side to pass' around the first two cars, and after passing these two cars my way was again blocked by another team, so that I had to pull in between the second freight car ⁴⁷⁵ and tlie third car which was separated from the first by a distance of twenty or twenty-five feet. "While passing this third car on the right, a man who was handling pipes on the freight train shoved a pipe into the side of my machine, striking it right in the centre, bending the stay to the top, and the vibration of the jar broke my windshield. I stopped immediately and somebody called that the man on top of the freight train had been hurt.

This man had been thrown down into the ear, hut when I saw him he had been assisted to the ground and was standing up, with his nose bleeding. I asked him if he was hurt very bad and whether he wanted to go to a hospital, and he claimed that it was not necessary to take him to a hospital, as they had their compensation doctor to treat him. I then went on about my business. I informed my brother of the situation when he returned from Aew York about a week or ten days after ^November 13th, and explained that the car had been damaged and spoke of the man’s injuries and nose bleeding.” Attached to the above statement, obtained on the 10th day of January, 1919, is the following memorandum, signed by the appellant: “I have read the attached statement made by my brother, Mr. Joseph Lewis, and same is correct.” The appellant in his evidence stated: “In the first eonferuioe, after he (Veils) got tlie letter from the insurance company, be came down and spoke about, the case.

He said be would get busy and go over to the' State Accident Commission and try to be present at the hearing1, on the second occasion he came back with this statement. He said, ‘I looked into the matter; there is nothing to do; they are trying to put one over on you, if anything happens we will look after you; don’t worry.’ This was on the second visit from Mr. Veils and he had that statement and Mr. Veils asked me to sign it, which I did. T have had no further conference with him except the information I received after signing ⁴⁷⁶ the statement that I had no ease against the company and they were not responsible for any liability which I think yon have a letter also refusing1; counsel fee for the case.” The "information” to which he refers was the following letter: “January 28, 1919. “Mr. Jack Lewis, “1411 E. Baltimore St., “City. “Dear Sir: “At the request of our client, the Commercial Casualty Company, we beg to return herewith original of letter addressed you by Mr. Harry H. Wilson, of the Globe Indemnity Company. “We are further instructed by the Commercial Casualty Company to formally notify you that on account of your failure to give the Commercial Casualty Company immediate notice of accident, to which it was entitled under the terms of the policy, the matter of this claim is not covered by your policy Ho. AY-87065, or by any insurance in this company.

On account of your violation of the condition of the policy as to the giving of notice, it will be incumbent upon you to protect your interests in connection with any claim that may be made against you either by. the Globe Indemnity Company or the representatives of the injured. “Yours truly, “(Signed) Wells & McCormick.” Thereafter, the exact date is not shown,.suit was instituted by the Globe Indemnity Company against the appellant for the sum of twenty-five thousand dollars, and the papers that were served upon him in connection with that suit were sent by his attorney, Mr. Goldstone, to the appellee, enclosed in a letter, dated the 28th day of August, 1919, asking it to defend the suit upon the condition that no responsibility should rest upon his client for the payment of fees in defend ⁴⁷⁷ ing the action, and should it decline to defend upon the condition named, it was asked to return the papers. The appellee replied, denying all liability under the policy for the loss claimed, hut agreed to defend the' suit with the understanding that it should not be liable for any judgment that might he obtained thereon, or for the payment of any damage or loss on account of the accident upon which the suit was brought. This proposition was not accepted by the appellant and, the appellee declining to defend the suit, except upon .the condition stated by it, tbe appellant assumed to defend the suit himself. But before the case came to trial, it was compromised by the appellant paying to the Globe Insurance Company,' tbe sum of live hundred dollars.

This amount, together with the cost of suit and fees paid to counsel in defense of it, was demanded of appellee and, upon its refusal to pay the same, the suit in this ease was brought. At the conclusion of the trial, in which the facts we have stated were adduced, three prayers were offered by tbe defendant. The effect of each was to take the case from the consideration of the jury. We need, however, to consider but one of tbe prayers granted.

By it the jury was instructed “that from the uncontradicted evidence in this case, the plaintiff failed to give immediate notice to the defendant of the accident in question, within a reasonable time after he had been informed of its occurrence, and, therefore, the verdict must be in favor of the defendant.” The counsel for the appellant, in their brief, speaking of this prayer, said: “The defendant’s third prayer required the jury to find from the uncontradicted evidence that plaintiff failed to give the company immediate notice of the accident. If this court should hold that, under the language of the notice clause, the plaintiff should have given the company immediate notice of the accident, and further hold that there was no waiver of notice, then the effect will be to prevent any recovery by the plaintiff for either his loss, or Ms expenses.” ⁴⁷⁸ The uncontradieted evidence discloses that the accident, from which injury and death resulted, occurred on the 13th day of Movemher, 1918. The appellant, who was not at home at the time, returned a week or ten days thereafter, when he was told by his brother, the chauffeur, of the accident, his brother saying “that he told him of the situation, and explained that the car had been damaged and spoke of the man’s injuries and nose bleeding.” But though told of the accident, and injuries to the man caused thereby, he giave no notice thereof to the appellee until after January 4th, 1919, six weeks or more thereafter, when told by letter from Wilson, attorney for the Globe Indemnity Company, insurer of the Crane Company, for whom Fitzpatrick was working a.t the time of the accident, that he would be held responsible for the accident and the loss resulting therefrom. The notice given at such time by the appellant to the appellee, as conceded by appellant’s counsel in their brief, was not in compliance with the provisions of the policy, if it were meant thereby, that notice of the accident was to be immediately given to the insurer by the insured.

Therefore, the inquiry to be made is, was it the intention of the parties to this insurance contract, that immediate notice was to be given by the appellant to the appellee of the accident, and the injury or damage caused thereby, resulting in possible loss to the plaintiff. The policy provides that, “upon the occurrence of an accident or loss covered by the policy, the