46 Colo. 558 | Colo. | 1909
delivered the opinion of the court:
The plaintiffs in error were trustees for the owners, and in possession of the Windsor hotel in the city of Denver. The building was supplied with an elevator to carry passengers from one floor to another. May 9, 1896, the defendant in error, for a valuable consideration, issued and delivered to the plaintiffs, a certain policy of casualty insurance, insuring them against all liability for damages not exceeding a designated sum, “on account of fatal or nonfatal injuries sustained by any person or persons, other than the assured, in the elevator, or in the elevator well or hatchway, or while entering upon or alighting from the car connected with the elevator. ’ ’ The policy was made “subject to the agreements and - conditions indorsed hereon under which this policy is issued and accepted.” Among which were the following, to wit: “Upon the occurrence of an accident, and also upon receipt of notice of any claim on account of an accident, the assured shall give immediate notice in writing of such accident or claim, with the fullest information available, to the general
March 12, 1897, while the policy was still in force, one Eva L. Smails, a guest of the hotel, was injured in the elevator. The plaintiffs were residents of London, England, and it appears one Gilmore was their general agent in Denver, but a’t the time of the injury one Wiggin was the active and immediate manager of the hotel. Within ten or fifteen minutes after the accident Wiggin was advised thereof, and had a conversation with the injured person, who did not, however, at that time, make a claim for damages on account of the accident, but rather took the blame therefor upon herself. Wig-gin saw the injured person every day, and within two weeks or a month was advised that she intended to claim damages for the injury. He immediately notified Gilmore of such claim, having also notified bim of the accident at the time it happened.
Neither plaintiffs nor their agents at any time gave notice in writing of the accident to the defendant at Chicago, or to Thomas F. Daly, the agent who countersigned the policy, nor was any written notice given either to the defendant or to Daly of the claim for damages.
June 12th, following the accident, some one from the hotel telephoned to the office of Daly to the effect
The plaintiffs explained that they were led to believe, by the statements of the party injured to the manager of the hotel, that the trustees were in no wise to blame for the accident, and that “there would be no claim for damages and, of course, no suit.”
Mrs. Smails, however, within two weeks or a month, claimed damages, notified plaintiffs, and on September 17, 1896, instituted suit against the plaintiffs here'and recovered judgment for damages on account of the injury sustained by her in said accident. Upon the commencement of that suit, the defendant here .was notified and requested to take charge and defend, which it had a right to do under the terms of said policy, but declined so to do, though some negotiations were had relative to an arrangement by which it could defend without waiving any of its rights to deny liability under the policy of insurance. The judgment for damages was against Barclay only, his co-trustee not having been served with process. Each of said trustees, however, paid one-half of the judgment, and thereafter instituted this suit to recover the sum designated in the policy,
The defendant contends that the express language of the policy requires immediate written notice to be given it whenever any accident occurs within the terms of the policy, and another such notice whenever a claim is made for damages based upon injuries sustained in such accident; that plaintiffs, having failed to give the required notices, or either of them, the defendant is released and exonerated from liability under the policy.
The plaintiffs, however, in argument assert that a reasonable construction of the policy did not require the giving of notice or notices, unless the circumstances of the accident suggested that some claim for damages might be made against them.; that so long as they did not apprehend, or have reason to apprehend that such claim would be made, it was not necessary to notify the defendant; and that as soon as this latter event happened in the case at bar, the defendant was verbally advised of the accident and claim, and by its actions and conduct waived the written notices required.
The rights involved in this litigation are contractual and are measured by the terms and conditions of the policy, which must be. given a “reasonable and natural construction.” It is equally true, as argued by counsel, that in cases of ambiguity or uncertainty in the clauses in a policy of insurance which limit or exempt the insurance company from liability, that construction most favorable to the assured, consistent with the terms of the policy, must be adopted.—American Surety Company v. Pauly, 170 U. S. 144. These rules are sound and should always be applied, but no court should, or can, prop
' Counsel say that if a person be injured apparently by his own negligence, on premises owned by another, protected by an insurance policy, the assured has no knowledge or even grounds for suspicion that the party injured will make any claim against him for damages; and that such a circumstance or happening does not really become an accident within the meaning of the policy, until the assured is notified, or in some way acquires knowledge, that damages will be claimed.
Were we to accept this reasoning and interpretation of the policy, which we do not wish to be understood as doing, it would not avail the plaintiffs, as they did not bring themselves within the supposed rule. They knew through their special agent, the active manager of the hotel, and their general agent, Gilmore, of the accident immediately after its occurrence, and within two weeks or a month they likewise knew that the injured person claimed damages and intended to hold plaintiffs therefor, yet no notice of any kind was given defendant until, at least, two months thereafter, and then simply a telephone message thgt the accident had occurred. Clearly the plaintiffs are not within the terms of the supposed rule which they seek to invoke. Therefore, we need not, and do not, determine whether a reasonable construction of the policy did, or did not, require the giving of notice or notices, unless the circumstances of the accident suggested that some claim for damages might be made, or the plaintiffs apprehended, or had reason to apprehend, that such claim would be made. Not only did the circumstances of the accident suggest that some claim for damages might
We are of the opinion that by the language of
The cases of Grand Rapids Electric Light & Power Company v. Fidelity and Casualty Company, 111 Mich. 148, and Anoka Lumber Company v. Fidelity and Casualty Company, 63 Minn. 286, are relied upon by plaintiffs. These cases present the question whether under the respective clauses there under consideration, two notices were required, and whether one should be given immediately upon the occurrence of an accident, and another when claim for damages is made, or whether such conditions were complied with by deferring to give any notice until the claim for damages was made on account of the accident.
In Underwood Veneer Co. v. London Guarantee and Accident Co., Ltd., 100 Wis. 278, the identical form of policy here under- consideration was considered, construed and interpreted. The defendant in that case is the defendant in this. ' The policy was identical in terms and conditions with the one here under consideration. The decision in that case turned upon the construction of the same condition upon which this case rests. The party was injured August 24, 1895, and made claim for damages May 23, 1896. On the latter date the assured, for the first time, notified the insurance company. On June 8, 1896, the assured further notified the insurance company of the occurrence of the accident and of claim having been made for damages. September 7, 1896, the’injured party brought suit against the assured and the latter tendered the defense to the insurance company, which it declined, and denied all liability. The case resulted in judgment in favor of the injured party and against the assured. The latter thereupon sued the insurance company upon its policy and recovered judgment, from which an appeal was prosecuted. The court at page 997 said:
‘ ‘ After careful consideration, we are constrained to hold that the conditions indorsed upon the policy, and quoted above, were conditions precedent. The policy expressly states that it was ‘subject to the agreements and conditions indorsed’ thereon. Such conditions expressly required the plaintiff, ‘upon the occurrence of an accident, ’ to ‘ give immediate notice in writing of such accident,’ etc. The reason for
The contention of plaintiffs that defendant waived the notice or notices required, has no merit. The plaintiffs in their complaint specifically charge that they “on the occurrence of said accident gave notice in writing with full particulars of said accident, to the local agent of the defendant at Denver, and that afterwards, when the claim was made for damages on account of said accident, they gave a like notice with full particulars to the said local agent of the said defendant at Denver.” These are direct and positive averments of specific compliance with the requirements of the conditions precedent set forth in the policy. Nothing is averred relative to a waiver. The plaintiffs relied specifically upon a strict compliance with the terms and conditions of the policy. The defendant interposed a general denial of all the material allegations of the complaint and an affirmative defense based upon the conditions of the policy, and alleged that no notice had ever been served. The plaintiffs failed to reply to the affirmative defense, or at all. Inasmuch as there is no pleading raising the question of waiver in this case, the question is not here for review.
When a complaint upon a written contract alleges specific performance of the conditions and obligations on the part of the plaintiff, there can be no recovery upon an alleged waiver not plead.—Mohney v. Reed, 40 Mo. App. 99, 109; McCoy v. Iowa Co., 107 Iowa 80.
In Isabella Company v. Glenn, 37 Colo. 165, 169, in speaking of the question of waiver, we said: “Whether it be a waiver or a release, and whatever be its true meaning, if defendant wished to rely
Furthermore there is absolutely no evidence upon which a claim of waiver can properly be based. Assuming that Mr. Daly and the attorneys securing the statements relative to the accident, could bind the defendant, we are wholly unable to discover in their acts or conduct any intention to waive or any waiver of the breach of the stipulation for immediate written notice of the accident and claim for damages.—Rooney v. Maryland Casualty Co., 184 Mass. 26.
We find no reversible error in the record here presented, and the judgment is, therefore, affirmed.
Affirmed.