30 N.W.2d 46 | Mich. | 1947
Lead Opinion
On June 22, 1945, plaintiff Louis V. Kennedy, while crossing Division avenue in the city of Grand Rapids, was struck by an automobile owned by defendant John Dashner and driven by his son, Kenneth. Kenneth was subsequently found guilty of leaving the scene of an accident, and sent to prison.
On August 8, 1945, 47 days after the accident, plaintiff's attorney wrote the garnishee defendant, Preferred Automobile Insurance Company, notifying them of the accident and suggesting a discussion of a possible settlement. On August 14, 1945, the insurance company replied, stating that they had no report of the accident. They did not receive a report from their insured, John Dashner, until August 31, 1945.
Suit was instituted by Kennedy against Dashner on September 19, 1945, which the insurance company defended after first having advised Dashner that no liability was assumed by them. Dashner was notified by the insurance company of the date of the trial and told to be present. When he failed to appear, he was again notified of the adjourned date and urged to cooperate in the defense of the case. This second notice was sent by registered mail and again Dashner failed to appear. The case was tried without him and plaintiff obtained a verdict in the sum of $5,000.
On May 15, 1946, the instant garnishment action was instituted and later tried by the court without the aid of a jury. The trial judge found in favor of the plaintiff and a judgment of $5,000 was entered against defendant insurance company. *493
In support of its denial of liability, defendant insurance company urged the following defenses: Failure to comply with the conditions of the policy, which required the insured "as soon as practicable" to give "written notice of any accident, claim, loss or suit;" failure "to appear at the trial and at all times render all possible cooperation and assistance."
The controlling question presented on appeal is whether a notice received by the insurance company 47 days after an accident satisfies the contractual obligation to give a notice "as soon as practicable."
Plaintiff's right to recover against the garnishee is generally dependent on the principal defendant's right to so recover.Musser v. Ricks,
Appellant relies, among other authorities, on Oakland MotorCo. v. American Fidelity Co.,
"Upon the occurrence of an accident, the insured shall give immediate written notice thereof, with the fullest information obtainable, to the agent by whom this policy has been countersigned, or to the company's home office."
An accident occurred on May 4, 1912, but the first notice which plaintiff gave to its insurer was on August 15, 1912, after suit had been commenced. The operator of the motor vehicle had previously left plaintiff's employ and his whereabouts was unknown. As a result of plaintiff's neglect to promptly notify the insurer, the latter was prejudiced by being deprived of the testimony of a most important *494 and material witness for the defendant in the principal suit. We concluded, though constrained to do so, that, as a matter of law, under the undisputed evidence, plaintiff failed to give timely notice of the accident and claim in compliance with its contract agreement.
The instant case presents a different situation. The policy involved requires that the notice is to be given "as soon as practicable." Notwithstanding the difference in the language of the policies of insurance in the instant and the Oakland MotorCompany cases, the general meaning of the terms has been held to be a reasonable time, dependent upon the facts and circumstances of the case. See authorities annotated in 76 A.L.R. beginning at page 23, especially page 46 et seq. Admittedly, insurers are entitled to an opportunity to investigate claims and adequately prepare their defense. Here, the insurer was put on notice 47 days after the accident when it received a letter from plaintiff's attorney. An inquiry at the local police department would have disclosed considerable information with respect to the claim. The terms of the insurance contract are strictly construed in favor of the insured, Pawlicki v. Hollenbeck,
The record does not disclose that Dashner could have been of any assistance at the trial if he had been present. He was not an occupant of the car at the time of the accident, and probably could have offered no testimony pertaining thereto.
It is argued that Dashner's failure to disclose the whereabouts of his minor son Kenneth, the driver of the car, and his failure to grant permission to interview him in prison, breached the contract of insurance. *495 Kenneth's whereabouts was known to the insurance company prior to the trial of the principal case and his deposition could have been taken, or he could have been produced as a witness upon proper showing to the trial court. 3 Comp. Laws 1929, § 15200 etseq. (Stat. Ann. § 27.2244 et seq.).
In short, the record wholly fails to show in any particular where the insurer's rights have been prejudiced in any respect. Furthermore, the trial court found that apellant had notice sufficiently in compliance with the terms of the policy, and that, after such notice, appellant appeared and defended the principal case.
The judgment of the trial court is affirmed, with costs to appellee.
SHARPE, REID, and NORTH, JJ., concurred with BUSHNELL, J.
Dissenting Opinion
I do not concur in the opinion of Mr. Justice BUSHNELL.
The policy expressly provides, as a condition precedent to liability, that the assured shall, as soon as practicable, give the insurer written notice of any accident thereunder. This Court has given recognition to such provision as a condition precedent to liability. Oakland Motor Co. v. American Fidelity Co.,
The requirement of the policy that notice be given "as soon as practicable" and similar provisions in policies for immediate notice, et cetera, are commonly construed as calling for notice within a reasonable time. Vanderbilt v. Indemnity InsuranceCo. of North America,
I am not in accord with Mr. Justice BUSHNELL'S view that a showing of prejudice to the insurer's rights, resulting from assured's failure to give notice within a reasonable time, is essential to the insurer's defense. In the case of St. LouisArchitectural Iron Co. v. New Amsterdam Casualty Co., decided by the eighth circuit court of appeals, *497
"We think that, where by the contract between the parties the giving of the specified notice is a condition precedent to liability, a showing by the casualty company of prejudice to its rights is not necessary to its defense."
While the question was not squarely before this Court, we have expressed adherence to the same view in the case of Exo v.Detroit Automobile Inter-Insurance Exchange,
"It is true that it is entitled to all reasonable notice, and failure to give it would release defendant from liability.Oakland Motor Co. v. American Fidelity Co.,
Plaintiff cites Grinnell Realty Co. v. General Casualty Surety Co.,
As stated by Mr. Justice WIEST, speaking for the Court inJackson v. State Mutual Rodded Fire Insurance Co.,
"It is axiomatic that parties may make such a contract for insurance as they may see fit provided the same does not contravene any provision of law."
The condition precedent to liability incorporated into the policy contravenes no provision of law. It is stated in clear and unambiguous terms. No claim is made of fraud or misrepresentations with respect thereto. Under such circumstances it is not the province of the court to write a new or different contract of insurance between the parties for the purpose of limiting the condition precedent to liability, in a manner never intended nor agreed upon by the parties, solely to those instances in which the insurer's rights have been prejudiced by its nonperformance.
Breach of the condition precedent in the policy requiring assured to give notice of the accident as soon as practicable, or within a reasonable time, constitutes a complete bar to plaintiff's right to recovery without necessity for a showing of resultant prejudice to defendant by reason of the delay.
But it is clear that defendant's rights were prejudiced by assured's failure to give notice of the accident within a reasonable time. In that connection defendant stresses the case of Oakland Motor Co. v. American Fidelity Co., supra. The opinion of Mr. Justice BUSHNELL indicates that that case is distinguishable from the instant case in the respect that in that case prejudice to insurer's rights was shown by reason of the disappearance of a material witness during the period while assured delayed *499
giving notice. But in the instant case assured's delay prevented the insurer from securing a statement promptly from a material witness, the plaintiff himself, before he retained an attorney and had time to think over the case, discuss the legal principles involved and justify his position. In that respect the insurer's rights were no less prejudiced than in the Oakland Motor CompanyCase, for, as was said in Malloy v. Head,
"It is common for a freshly injured man to say that the accident was not the fault of the assured, only to change his mind later with the full approval of the jury. Such situations continually arise, many of them with no taint of fraud. They are the daily problems of insurers. This is the well known situation concerning which the parties have contracted."
Finally, I am impressed that assured's failure to attend the trial in the principal suit, as required by the policy, could not have failed to prejudice insurer's rights. The fact that assured was not a witness to the accident is not conclusive of the matter. The situation presented by his absence from the trial of the case before a jury is well described in Glens FallsIndemnity Co. v. Keliher,
"With reference to the defendants' third contention, the trial court found as follows: `Counsel have asked for a finding that the failure of Mr. Keliher to cooperate did not adversely affect the result.' * * *
"In view of the court's finding that it is `more probable than otherwise that liability would have been established if Mr. Keliher had testified,' counsel for the defendants argue that his absence from the trial did not harm the defendant, and, *500 therefore, that his refusal to cooperate was not material.
"There are both practical and theoretical answers to this argument. Every person familiar with the trial of cases by jury knows that the case of an individual defendant is seriously, if not hopelessly, prejudiced by his absence from the trial. Such absence, if not adequately explained, is a circumstance, `chiefly persuasive as distinguished from probative in its effect' (Login v. Waisman,
"The theoretical answer to the defendants' argument, which is equally complete, was well stated by Cardozo, J. in Coleman v.New Amsterdam Casualty Company,
Judgment should be reversed without a new trial, with costs in both courts to garnishee defendant and appellant. *501
Addendum
I agree with the first part of the opinion of Mr. Justice BUSHNELL wherein he writes in effect that prejudice to the rights of the insurer is a necessary element to be considered in determining whether there has been an unreasonable delay in giving notice of the accident to the insurer "as soon as practicable." This follows the rule laid down by this Court in cases involving a like question regarding the giving of notice to fire insurance companies, before the rule was changed by statute as applied to fire insurance companies but not as to automobile insurance — Tubbs v. Dwelling-House Ins. Co.,
However, I agree with the second part of Mr. Justice DETHMERS' opinion holding in substance that under the facts in this case such prejudice was actually shown, as a result of which the case should be reversed. For that reason alone I concur with Mr. Justice DETHMERS in reversal.
CARR, C.J., and BUTZEL, J., concurred with BOYLES, J. *502
