*1 Corporation, Company, v. American Automobile Armour & In- Corporation, Appellant. Company, surance (2d) S. W. 685. Two,
Division & McPheeters Williams, appellant. Bryan, Cave *2 S Leahy, Lyon respondent. Anderson Saunders Walther and for COOLEY, liability C. Suit to recover on an automobile insurance policy plaintiff. judgment issued defendant Verdict and for $9,835.40 for which from defendant The appealed. policy expense arising insured or from claims for loss dam- ages growing by plaintiff’s out of the use of automobiles employees required business, investigate the defendant all ac- policy, brought against cidents covered plain- to defend suits damages bodily injuries tiff on claims for on account of such accidents, limits, pay, policy any judgment and to within the ob- against plaintiff, costs, tained dispute etc. There is no as to judgment the amount of the is entitled to recover at all. policy contained following provisions: policy “This Company subject following
issued conditions, limita- agreements tions and which part policy, are a and to which as- sured, by acceptance policy agrees: of this ‘‘ Upon *3 any the occurrence of loss hereunder, or accident covered give assured shall company the immediate written notice to the at Mo., Louis, agent, its home office in St. or to authorized with the fullest information obtainable at time. the a claim is made on ac- If accident, give such count the assured shall like no>tice im- 'thereof mediately made, such particulars. claim is with full If there- after any brought against after suit is claim, the assured to enforce such immediately assured shall company the forward to the every sum- process mons or other as soon as the same shall have been served. requiring “Please note condition immediate notice. . . Mail . immediately. Office, Building, Pierce “Home Louis, (Italics ours.)
“St. Mo.” controversy in this case arises from defendant’s contention that comply provision the failed to with the which have italicized. February
On policy Smith, while the in force, was Bruce minor, residing parents injured a with Steubenville, at Ohio, was an automobile driven employees. The accident coverage policy. was within the Immediate notice of the ac- was investigation. cident to insurer and made a full investigation completed About the time the father of in- jured boy, boy apparently thinking the had been as much at fault driver, investigator as the “they” automobile stated to the that any damages did not intend to make for or compensation. insurer
Both the insured then their closed of the case. files Nothing further occurred connection with the matter Decem- until day parents ber 1924. On that of Bruce Smith called Harry McGinnis, manager A. local of branch Steubenville boy a developed bim had Company, & and told that
Armour causing and that their doctor had ad- convulsions brain condition they expense would operation; that estimated the be an vised they $500, they know raise wanted to $1,000; that could defray expense. thought help would Company if Armour & he Company Armour & at the employ in the McGinnis was not defendant, a He was called as witness trial. time of this my December, office Smiths came to testified: “When the hurt, they didn’t boy but at the time had been Smith stated say claiming he I not was then much it. would think impressed seek- Company & at fault at all. He me as Armour legal having friendly way to ing without resort little aid charity to; you get it. can call it want he You action go any lawyer seeking assistance. He didn’t threaten $1,000 put He they didn’t suit that time. file a at Casualty I them would write to the up operation. told Smith did not make see what their attitude was. Department any specific amount. The amount of a thousand dollars mention of expense in being estimated connection mentioned . . operation. . they All did thousand dollars.
“The Smiths not demand the expression, opinion me, an from as to whether Armour was an wanted in- defray expenses the medical contribute They boy’s not did at that treatment. state cident lawyer. They they in- did state that consulted vestigated facts Armour & were liable and found boy’s legally injuries.” for this Chicago Company’s reporting wrote Armour office
He said he *4 Smith; according recol- with Mr. and Mrs. that to the interview only office communication received from that was lection he company for the to handle.” be one insurance “that the case would McGinnis, Harry between the Smiths and Relative said interview began Bruce, boy 1923 the hav- Smith, testified that about father ing spells seizures and that he and his epileptic and convulsive boy operated on, which would cost have the wife advised to $1,000; they $500 and “we decided we would that they if of the go pay see would the balance thou- and to Armour’s (McGinnis) had so We him that we much dollars.” told sand they more, and if money and much felt would needed so He everything square. said he would take help us we would call I I Chicago $500. told him that we needed with office. up pay $500 & Company him would no suit Armour told testimony brought against company.” Mrs. Smith’s would be said: “I told him what the doctors like tenor. She had told suit, they bring but to us we didn’t want to were nice at and us might us; that thought help time of accident and we now get if we help.” we would release them would notify Company the insurer of the Armour di'd not at the time interview between and the Some after that McGinnis Smiths. just
interview, employed but when not the Smiths an appear, does attorney, Kinsey, 1925, I. Armour February 28, W. who wrote on 1919, Company February 4th, follows: On as “Gentlemen: seriously boy your injured young auto trucks struck and Streets, name of Bruce 5th and Market Smith at the intersection of Harry Steubenville, parents, Smith, Ohio. His Mr. and Mrs.
Washington concerning Street, city, this me called see matter, claiming you injuries their for the responsible are me, I you pleased son. If shall be care to discuss this matter with you you may suggest. early How- to receive at an convenient time ever, you so, you should thank advise desire to do so Kinsey.” truly, me. Yours W. I.
Plaintiff 11, 1925, claims that on March wrote mailed to de- it. follows, enclosing fendant letter therewith Mr. letter: Injury 4, “Gentlemen: Re: 1919. Smith, to Bruce Feb. We are en- closing attorney representing herewith letter plaintiff from the captioned you reported ease. This matter was our you February kindly 1919. Will 7th, handle this matter direct with attorney? very truly, & Company.” Yours Armour nothing Defendant claims never received that letter and knew having against of a been made Armour & until suit February against February, was filed 1926. company On Smith, yet brought minor, in a Bruce suit next friend Ohio, Qounty, state in Jefferson court which thereafter removed resulting judg- Court, tried in the United States District plaintiff, paid. ment for the which That case Armour & March, Upon filing February, tried of that suit immediately herein forwarded to defendant the summons depositions therein a notice to which had been served take summons, requested plaintiff with the defendant to attend to the thereupon investigation, case. Defendant the course files, which it was access to and examined and learned McGinnis and Mr. and of the above-mentioned interview between then, 5, 1926, Smith. re- Mrs. Defendant on March wrote fusing recognize liability the Bruce Smith suit on or to defend ground plaintiff, within the that a claim had been made purview 1924, and that policy, on December *5 give provided policy. in the failed to immediate notice thereof as Defendant, by pleads defense, herein, its answer that it its give im- liability plaintiff’s from failure released because of .alleged on December 1924. mediate notice of said claim made Nothing give made on notice of the claim failure February 28, Kinsey in of Mr. his letter of Bruce Smith behalf stated, that it received defendant claimed never As 1925, enclosing Kinsey’s Mr. letter to letter March plaintiff’s of M. Wilson To that claim called plaintiff. sustain defendant Robert claims at employed defendant as testified that he been who con charge kept and files in torney 1917 and himself the since injury; no com received with the Bruce Smith that “we nection any with from Armour or from else & munication February, 1926. February, 1919 and claim between reference my in an a letter from Armour I file effort locate examined find none.” Company in 1924 and and could persons employ called in at the In rebuttal mailing Openlander, of letters. Mr. question in who attended adjuster, he to his testified that on dictated stenographer signed quoted, at- and the letter that date above Kinsey’s placed prepared letter tached thereto letter and thus mailing mailed; his be in the basket on desk to him, worked for stenographer his who then went with letter. mailing Allen, Sweeney, Mrs. nee testified that she did not recollect testimony particular letter, was her but that it custom—and her duty mailing in indicates it her the letters so left take —to office, mail close department basket to the in which was Openlander’s after Mr. room. first said that letters She mail signed placed generally in “I and the basket: would take take put envelope and seal them and out basket and in the testimony she department.” to the mail Later in her them out “generally.” specifically state omitted the use of the word Asked said: she she her custom with reference to letters had transcribed bring “I man who would transcribe them them back to the and them; signature. And then lay them on dictated his desk . . and they would be desk . put basket, which was on the go get put seal them in en- would over them and them—or velopes mail department.” and seal them and them out to the take “Q. your A. you Was that a custom work down there? Yes.” department plain- Forsyth, charge the mail who was regular office at custom
tiff’s the time described handling all mail from department mail. He said that departments depart- came to his the various Armour else;” already sealed, anywhere unless ment —“couldn’t come sealed, stamped put it was into Govern- there was then three, gurneys, which mail sacks or there were which ment from which col- placed closed on a table would be then be *6 by company, employed the mail carrier every by a hour leeted about mail went into all of the post He said that the office. and taken ’’ ‘‘ there; the go that such was gurneys, had to in sacks or those Armour all 11, 1925. He also said that of vogue on in custom printed address company’s return envelopes the Company’s & handling particular course, remember not, of on He did them.
letter. years eighteen he for the past Conklin testified that Joseph depart- plaintiff carry mail by the mail from the employed to* been automobile; by post office,which he did officeto the ment of its mail gurneys department, of get mail out he sacks or place post office and Forsyth’s department, them into the take Mr. charge taken of office where post (cid:127)them a table on forty- every office; trips in that he by made clerks Sundays; day except that he was minutes; every he worked five March; except vacations, vacations in duty and took no never off on I day of a in March in the world as know since was off “never firm.” been with the by proof of custom followed
After the was made of mailing plaintiff’s a of said letter March copy letters carbon Mr. Openlander, 1925, taken from its files and identified evidence, February 28, were introduced in objection, 8, respectively. without Exhibits requested given telling and was an instruction The policy jury requiring that “the condition contained sued give insured immediate therein notice the insurance com- pany any claim, upon insured, only requires any, made such given a reasonable notice to be within time after the assertion of find jury such claim” in order to for the defendant parents find Smith; prior of Bruce must institution Company against suit Armour & made a claim his his behalf and that company give on Armour did not thereafter; notice such claim defendant within reasonable a determining what jury might and that reasonable time the all the consider attendant facts and circumstances shown in evidence. Defendant, except requested peremptory for instruction which refused, instruction, asked and was which directed jury if the verdict for defendant found that a claim was first made injured boy parents on December, behalf or 1924, and was informed that Armour of such claim on December 13, 1924, give and did not notice thereof “immediately, to defendant time, reasonable all or within a under and circumstances as the.facts the evidence the case.” disclosed contention is Appellant’s that “the failure of the give claims upon plaintiff by to the defendant of the in- jured party period for a than fourteen months after the first more claim was made, after the second more than eleven months made, was, give claim was law, as a notice of matter of failure to claim,” according the claims within a reasonable time.” “first appellant’s view, Mrs. request made Mr. and Smith *7 13, in their interview with Mr. 1924. The McGinnis of December Kinsey plaintiff second was of by that made in to his letter February 28, contention, quoted appellant’s T925. The from above brief, rests upon theory the to Avarrant that there no evidence finding defendant, a that plaintiff’s letter of was mailed. Appellant given first insists that the and notice by plaintiff it against plaintiff that a was the had been February latter’s letter 11, 1926, enclosing and the summons notice to in depositions take suit which Bruce Smith had filed the February 8, 1926. herein on agree appellant.
We are unable to with this contention of As persons employ all in its at the pointed we have out called mailing testimony of letters. Their who had to do the daily large mail. Ob plaintiff sent a amount of that the out shows testify impossible employees the that viously it would be for letter, remembered, years mailing specific there later, a unless several impress upon their memories. special circumstance to the fact Avassome according outgoing mail handled testimony that Avas shows Their large regular routine. The business of such concern and strict says efficiently hardly Appellant otherwise. conducted could be it her “invariable that was his or if each of the witnesses testified things it sufficient but it to would be rule” to do the testified merely or testify to the custom is not sufficient for the witness Carthage Novelty 116 rule, citing: Co., App. Mo. general Goucher v. Storage Co., 119 v. Transfer 447; 91 Ward Morr Mo. S. W. Ry. 964; v. 120 Co., 95 Co. Mo. Pac. App. 83, W. Hardin Grain S. 681; Hoover, App. v. Mo. 203, 96 S. W. Collins App. Mo. (Mo. 940; App.), W. Co. v. Barker Peirson-Lathrop 218 S. Grain notary prepared 223 W. In Goucher case the who the S. the prepared and left it in in that she it the testified outgoing Gray regular mail and that place in the law officefor “Mr. Gray day mailing such letters.” Mr. did not attended each mailing, testify. insufficient to show court held the evidence The lawyer’s saying testimony office and left the way post that it found its to the presumed could not be office. by Lord Ellen said: “The rule first announced court further Hetherington Camp. Kemp, 193, appears v. case borough ease, authority. In that a notice written support have the eountinghousé put a merchant his down table being office, the post thence to purpose carried deposited upon that all letters by the course of business shown judge office. The held porter post to the were carried table be saying; must insufficient, ‘Some evidence evidence put countinghouse was taken from the table the letter that, you porter and he had office. Had called post into invariably question, he although recollection of the letter in he had no table, upon the all letters found this post office carried general this evidence might hold have done. But cannot countinghouse to be sufficient.’ of business course cases.) (Citing always Gray mails the letters’ notary’s that ‘Mr.
“The assertion letter, for particular fact that he mailed was no evidence hearsay solely upon informa- necessarily reasons. It was based two hearsay notary except knew tion, for no claim is made that office; invariably with letters after he left Gray what Mr. did mailing by proof alone attempt it is to establish the fact of an proba- carries no particular office. The evidence of a custom that . mail- prove failed and we must hold that tive value *8 ing of the notice.” as also a to call wit cited there was failure
In the other cases mailing of letters. do with the persons all of the who had to nesses Lord the rule laid down They Ellenb follow the Goucher case orough Camp. 193. Hetherington Kemp, 4 The latter case v. (N. Cowen, 6Y.), Brinkerhoff review in Thallhimer v. came under letters in a duty copy was to 90, the clerk it wherein whose 100) (6 Cowen, l. c. : “That mail testified then them book and post original letters to practice carry the invariable was his very That he them in that letter-book. copied as soon as he had office ours.) (Italics court held that them hack.” seldom handed sent. “It showing the letter had been made a sufficient evidence Hetherington Kemp v. fully up what Lord Ellenbgrough, comes Thall- If clerk in the (4 sufficient.” Camp. 193), held would be sometimes) (but handed only very perhaps case seldom himer strong testimony no back, that his tended more letters it would seem case, if, in in the instant ly practice “invariable” than an to show deed, strongly. 191 Ry. (Mo. App.), Pacific Co. Equity Elevator Co. v. Union
In good when condition 1067, question was whether a ear was W. S. of a witness who only evidence carrier. The delivered to the they left the cars before his custom to examine testified that was good unless it was permit a car to leave yard that he would not car but condition; particular of the that he had no recollection good custom, was not in condi known, by that it reason such testimony It was-held that tion, fact. if such had been the jury. case for 560 following
In the proof cases the of custom relied establish stronger, the fact that a letter mailed, think, bad been was no than in the us, ques case before and it was held sufficient to take the jury; Hastings tion to tbe Brooklyn Co., 473, v. N. Y. Life Ins. 138 289; 34 N. E. Lodge W., 61, Backdahl v. 46 Grand A. O. U. Minn. 48 454; Hughes N. W. Storage v. Pac. (Cal.), Wharf & Co. 205 Pac. discussed, question length cited; where tbe at cases Swampscott 159 Rice, 520; Machine Co. v. N. Mass. 34 E. Smith v. Heitman 44 Company, App. 358, Tex. 98 S. 1074; Myers Civ. W. v. (C. Moore-Kile Company A.), C. 25 L. Fed. A. R. 1. And see annotation (Wis.), to Federal Asbestos Co. v. Zimmerman seq. A. L. R. l. c. et
In tbe bar, ease at while tbe witnesses did not “in- use tbe words practice” variable or rule,” “invariable their testimony shows that practice or usage custom testified to was tbe settled custom and office, regularly systematically followed in tbe transaction of nothing its business. There is indicat- tbe evidence ing that it was ever varied from.
Appellant’s evidence that the letter was never re ceived is not aof conclusive nature. witness, But at claims torney, Wilson, point. testified testimony on that His does show that mail addressed to defendant’s home office came first to contrary. desk. It except bis indicates the He could not know hearsay that the letter bad not reached defendant’s and come office into the bands of some officer company. testimony His defendant necessarily never received the letter is or conclusion hearsay. Novelty Co., based on supra.] testimony v. His [Goucber that be bad examined his file and could find therein no such letter prove does not that the letter did not reach defendant’s office. Proof prima that a letter presumption was mailed raises a facie *9 by that it was received County, the addressee. v. Cole 272 [Clark 135, 197 Mo. S. policy provided W. In this case the for notice 905.] by closing mail. above-quoted excerpt: Note the words of the “Mail immediately. notice Building, Louis, Home Office Mo.” Pierce St. question, And mailing after letters the evidence of bad been given, objection. were introduced and read in evidence without
As.tending probability to show the that mailed Exhibits 8, 7 did, as it contends it that concededly promptly the fact notified defendant of the accident when it filing occurred of the suit, compliance of Bruce Smith’s in strict policy provision, with the may significance. improbable some It have seems that it would have sending Kinsey’s overlooked notice claim when it received Mr. However, probability. letter. we need not consider such Aside from opinion that in view of all we are tbe facts and circumstances question shown the whether notice of claim was mailed to defend-
561 by plaintiff jury. jury was for contended decided ant as defendant. gave It to conceded that defendant no seems be 13, 1924, the interview December between McGinnis and notice of through investigation the Smiths until defendant discovered it files Smith filed its examination of after Bruce suit. However, do not contend that if the understand defendant to justifies 11, 1925, finding a evidence notice of notice of would not and its mailed claim be sufficient timeliness such jury. uphold a for the And we could such contention not very made. It is doubtful whether Smiths can be said to they said, all made a claim at that occasion. "What as testified on certainly McGinnis, witness, to who defendant’s did not themselves, even on claim, amount to the assertion of a much less injured boy. plea of a behalf of the It was for aid the nature 114 Kan. 219 gratuity. [Whitby Company, v. Armour & Pac. 298 463, 131 N. E. 253; Commission, Ideal Fuel Co. v. Industrial Ill. Compensation Both those cases were under Workmen’s stat 649.] given requiring utes a claim be asserted within a time. In the to said, special 468: “No form for claim the court Ill. l. c. latter writing, be in compensation required is the claim need not apprise employer that has sustained in employee but it must jury compensation as entitle him and that of such character will be made.” If it can said that the statements such claim be them, McGinnis, contained Mrs. Smith Mr. and testified background if might they in the not a hint that a lawsuit lurk did they hardly get help is more a hint. It can sought, it no than damages or compensa be as the assertion of claim for characterized They en Smith. not claim he was tion on behalf of Bruce did damages. They they did not intimate that or would demand titled to They informed employed or counsel behalf. consulted Company that he write Armour ascertain McGinnis would sought giving and it regard help does their sentiments again such they to learn the result of called him appear Shortly claim on after the accident had stated no inquiry. made, and not until account thereof be
February 28, 1925, to Armour & there definite that such claim would or definite notice Armour & be made. Co., Fidelity Casualty Paper Company v.
In Columbia Stock that: “If no time App. S. W. it is said Mo. given immediately, required or notice is to be specified, being time, regard diligence and in a reasonable due *10 legal compliance with attending circumstances, such condition.” is v. Pre- general to Clements rule. note be the Such seems [See (C. ferred A.), seq.] Acc. Ins. L. 17, p. Co. C. A. R. et Since proceed parties theory both here seem to is that such correct construction of term “immediate notice” as used in the policy we question. need not further discuss that It is not contended given that if 11, 1925, March notice not within a reason able time after the assertion of claim Mr. Under letter. facts case, and circumstances of even it could be said that this and Mrs. Smith amade claim behalf of on Bruce Smith Armour & Company in their interview with on December McGinnis 13, 1924, gravely doubt, which we we think it cannot be as given matter of law that the notice claim was not compliance requirement policy. of the Ye think the court submitting question did not err in jury. to the Appellant declared, contends the court should have as matter of law, that notice of claim was time, within a reasonable “instead submitting the reasonableness of the time as an issue of fact jury.” to be determined This complaint is directed against plaintiff’s principal theory instruction and is based on the it conclusively appears that the first and notice of claim was when mailed to defendant the summons ih the Bruce Smith suit. What disposes we have said above of this contention ad- versely to defendant. urges
Plaintiff policy provision contained no for for give feiture for claim; failure to notice of that defendant was not prejudiced even if it failed to prior receive notice of claim filing of Bruce suit, Smith’s since it prompt had'received notice of the accident fully investigated and had year the facts and elapsed filing after suit, prompt of that of which given, notice was before that case was tried. unnecessary We deem it to consider that point. appears It to us from the record that tried and sub mitted its case theory below on the that notice was an es sential policy, condition of the and therefore must adhere to that theory appeal. on jury And since found for the on the of notice and we hold that there was evidence to sus finding tain such unnecessary is determine whether or not the prerequisite was a right recovery. judgment the circuit court is affirmed. Bohling, CC., Westhues and concur. PEE foregoing opinion CUEIAM:—The adopted Cooley, C., opinion judges court. All concur.