90 Wash. 687 | Wash. | 1916
Respondents had judgment for recovery on a policy of elevator insurance. The facts on which the same was based are, briefly, these: On November 23, 1913, appellant executed and delivered to respondents a policy of insurance, whereby it agreed to indemnify them against loss for damages on account of bodily injuries accidentally suffered by any person while entering or alighting from the elevators in a certain building in Seattle, Washington, owned by respondents, and in case of suit to defend such action and to pay expenses and costs. On May 10, 1914, while the policy was in full force and effect, one Horner was alleged to have been injured while entering one of the elevators covered by the policy. Thereafter, on about August 17, 1914, Horner commenced an action against respondents in the superior court of King county, for damages alleged to have been sustained from his injury. Respondent Julius Shafer, who had the entire control and management of the building, immediately upon the service of the summons and complaint upon respondents, took the same to one Lippman, the local
“Condition B: When any accident happens the assured shall give immediate written notice thereof to the company at its home office in New York City, or to its duly authorized agent. If any claim is made on account of such accident, the assured shall give like notice thereof. . . . That assured shall always give the company all cooperation and assistance possible. The company shall have the right to settle any claim or suit at its own cost at any time.”
It was contended by appellant that, by reason of this delay to give notice as provided in the policy, the elevator pilot who operated the elevator at the time of the alleged accident could not be located by appellant, after a diligent search, so he could be used as a witness at the trial. Respondents retained counsel, and the case proceeded to trial, and judgment was entered against respondents in the sum of $200, and costs were taxed in the sum of $41.40. Meantime the elevator pilot had been located by respondents, and testified in their behalf. Respondents paid the judgment amounting to $241.40, and also the further sum of $323.80 for attorney’s fees and reporter’s and witness fees, which were necessary, so far as the record discloses, in properly defending the action; and instituted the present action against appellant to recover the amount so paid out, alleging a breach of the terms of the insurance policy by reason of appellant’s failing to defend the action. Appellant answered and sought to escape liability on the ground that written notice had not been given as provided in the policy above set out, and that, by reason thereof, it was not able to locate the principal witness, viz., the elevator pilot. Trial was had to the court without a jury, and the court made and entered findings of fact and conclusions of law against appellant, and rendered judg
From a memorandum opinion of the trial court filed in the case, we find that his decision was based on the ground that, since the elevator pilot was located and testified at the trial on behalf of the respondents, the delay in giving notice did not contribute to the loss, and so the breach of this condition could not relieve appellant from liability, as provided in 3 Rem. & Bal. Code, § 6059-34, which reads, in part, as follows :
“The breach of a warranty or condition in any contract or policy of insurance shall not avoid the policy nor avail the insurer to avoid liability unless such breach shall exist at the time of the loss and contribute to the loss.”
The court being of this opinion, did not make a finding on the question of whether respondents had notice of the injury prior to the time when they were served with process in the Horner action, the evidence on this point being conflicting. The determination of this question lies at the very threshold of this appeal and, from the view we take of the point, it is determinative of the action; as the rule is well settled that where, because of the circumstances and conditions surrounding the transaction, the giving of notice within the time specified becomes impossible, it will be excused and held sufficient if given within a reasonable time after the removal of the obstacle. Hilmer v. Western Travelers’ Acc. Ass’n, 86 Neb. 285, 125 N. W. 535, 27 L. R. A. (N. S.) 319; Jennings v. Brotherhood Acc. Co., 44 Colo. 68, 96 Pac. 982, 130 Am. St. 109, 18 L. R. A. (N. S.) 109; United States Casualty Co. v. Hanson, 20 Colo. App. 393, 79 Pac. 176.
In Edgefield Mfg. Co. v. Maryland Casualty Co., 78 S. C. 73, 58 S. E. 969, the court held that, where plaintiff was insured against accidents to its employees and the policy provided for immediate notice of accident to insurer, notice of accident was excused where the superintendent was sick and most of the office force were quarantined with the small
“Where the policy contains a stipulation that, in order to entitle the insured or his beneficiary to recover thereunder, a notice of the accident or injury, containing full particulars thereof, must be furnished the insurer within a certain time, such stipulation is valid and must be complied with before a recovery can be had on the policy, except where not made a condition precedent to such right of recovery or where impossible of performance.” 1 Cyc. 274.
There is no direct evidence in the record that either of the respondents had notice of the accident prior to the institution of the Horner action, except that Lippman testified that, in
Nor do we think that knowledge of the accident by the elevator pilot is to be imputed to the respondents. The rule on this question is aptly expressed in the case of Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N. E. 110, 64
It is true the court below decided the case on a different theory; but since the case is triable de novo in this court, a decision correct upon any theory will be sustained in the appellate court, although the theory of the trial court may have been erroneous. Kanton v. Kelly, 65 Wash. 614, 118 Pac. 890; Kane v. Dawson, 52 Wash. 411, 100 Pac. 837; Hartig v. Seattle, 53 Wash. 432, 102 Pac. 408.
Nor do we consider the fact that the trial court failed to make a finding as to whether or not respondents had notice of the accident prior to the time of the institution of the Horner suit fatal to the judgment, based on the grounds expressed in this opinion; as every necessary fact not expressly negatived will be presumed, and the insufficiency of the findings of fact is immaterial where the evidence justifies the judgment, and merely defective findings will not invalidate it. Blair v. Wilkeson Coal & Coke Co., 54 Wash. 334, 103 Pac. 18; Magee v. Risley, 82 Wash. 178, 143 Pac. 1088; Cook v. Oregon-Washington Corporation, 84 Wash. 68, 146 Pac. 156, 149 Pac. 325.
Appellant next contends that, in any event, the sums for reporters, lawyers, and expert witnesses’ fees, aggregating
The judgment is affirmed.