*1 particular that the- in that is invalid and that the we hold ordinance ' justified discharging -defendants. trial tha court judgment finding of the trial It is therefore ordered-that McCwllen, hereby is, affirmed. Beoher and JJ.. be, court same ' concur. Re Assignee, Walker, Foristel, of Edward use P. James Corporation, Company, a Insurance spondent, v. American Automobile ellant. 70 W. Faulk, S. App Brooks Garnishee (2d) 82. April Opinion Appeals. 1934. filed Louis Court of St. rehearing April filed 1934.
Motion for April 17, rehearing 1934. overruled Motion *2 Bryan, Williams', appellant. (cid:127)&Gm& McPhéeters for *3 J.
Foristel, Mudd, Blair <&Habenicht James O’Donohoe respondent. *5 li- proceeding,
SUTTON, garnishment based on a C. This is a court,- without tried ability insurance cause judgment for.plaintiff jury. was a intervention of a There garnishee $6,144.55, appeals. and the following agreed statement facts:
The cause submitted the. hereby agreed by between stipulated and “It tried counsel, cause shall respective hereto, by their hereby being ex jury jury, trial of a Court without the intervention be taken shall set forth the facts hereinafter waived, pressly competent by1- though, established cause as the trial of this as true stipulation however, court; provided, open taken evidence' to introduce party of either to the prejudice without shall be inconsistent evidence competent and material and further other as true. stipulated taken to be facts herein with the ‘‘ follows: facts are as *6 or about Company
“The American Automobile Insurance on June 3, policy 1926, Faulk certain issued and delivered one Brooks its whereby agreed to for the term of insurance it' insure Brooks Faulk beginning ending 3rd, of June 1926, calendar months June and twelve against arising resulting from 3rd, expense or 1927, direct loss or ownership damages for reason of the claims Brooks Faulk (factory) automobile, No. Serial of a Chevrolet maintenance exceeding $10,000, 2465823, No. an amount 3V-56591, Motor bodily injuries accidentally or of death claims were made on account occurring any while by any person accident suffered result In- policy force, American Automobile said was in of the injuries resulting bodily from or the death Company surance investigate all being $5,000, and to accidents person of one limited to legal proceeding any in against Faulk pay taxed Brooks all costs In- by the American Automobile against him which defended were accruing upon part Company, pay interest surance and to A policy limits. any not in judgment which was excess part hereof copy policy and made of said is attached hereto stipulation. body in full ini the as if set out the same extent prohibited was volun- Brooks F'aulk By policy of said terms negotiation for interfering any in assuming any liability or tarily agreed Company settlement, American Automobile Insurance and the defend and to said investigate all accidents covered accident, whether of such Faulk suits on account said all name of defend as it right to settle or not, and reserved the groundless or And the brought Brooks Faulk. against elected claim suit against American lie no action should provided further expense under for loss or Company to recover Automobile Insurance ren- damages have been should the amount said until Faulk against judgment Brooks certain, by final either dered Ameri- written consent parties, agreement between Company. Insurance can Automobile
“On or about June .and while said was in full effect, Faulk, force and operating Brooks while said above-described automobile, injured Chevrolet one P. Walker, thereafter, James May, or' about 19th day thei P. said James Walker instituted' suit City Louis, Circuit Court Missouri, 'of the St. account, against damages Brooks Faulk injuries, of said styled action Walker, plaintiff, ‘James P. Faulk, v. Brooks de- 117,344, fendant, B, No. Series Division 8 of the Circuit Court ’ Louis, Missouri, St. judgment and thereafter in said had cause favor P. Walker of said James Brooks Faulk for the $10,000. sum of No for a trial was motion new filed and appeal taken, doing judgment expired. and the time for has so now Said has duly assigned been P. by James Walker to W. Edward Foristel. No notice of any injury kind of said accident or of P. James given Walker was to the American Automobile Company Insurance- May, until after the said May 24, 1927, suit was filed 1927. On f copy petition 117,344 summons said No. cause o Walker *7 v. Faulk by American delivered Faulk to the Automobile In Company. surance 2, 1927,
“After was filed of the suit and under date June Brooks report Paulk made a In- of the accident to the American Automobile Company surance and with statement of facts furnished it surrounding 1927, 6, the accident. of June American Under date Company liability Automobile Insurance disclaimed all under said following in the letter of that from Auto- the American date Company mobile Insurance Mr. Brooks Paulk: tó “ report by you of ‘We haVe at hand a accident made out 2nd, 1927, itself June to the accident which occurred reference 1926; 1927, your left at this office June also statement June covering the facts. “ ‘We returning are original herein petition in the suit of James P. Walker vs. Faulk, Brooks filed term, 1927, June of the Cir Court, City cuit of Louis, St. in the sum of $15,000, 117,344, suit No. this being suit brought by Mr. James P. Walker, party who was the injured in your 16, 1926, accident of June as arewe unable to handle this accident and defend this your account of policy violation with reference to immediately reporting occurring accidents in con nection with your of use automobile: While the accident occurred June, you report did not you to us because' considered it a trivial matter you until suit against was filed nearly a year later. “ are, ‘We therefore, compelled to disclaim all your under policy for this suit any or might other claims which against be made you growing out this accident, accordingly and we disclaim re- sponsibility any judgment against you recovered in this suit or any any paid by court costs or you amounts in settlement or defense ’ of this suit or growing other claims out of this accident.
“The American Automobile Company part Insurance took no whatever in the defense of against the suit of James P. Walker Brooks Faulk, in which judgment against Paulk, said was obtained Brooks as set out above. 153, April
“Execution Term, 1929, No. of the Circuit Court of City duly judgment of St. Louis was issued on’said in said cause No.
117,344 and the American Company duly Automobile Insurance sum- garnishee, interrogatories moned as and filed answers thereto filed. interrogatories “And this cause shall be taken as said submitted on and answers above set thereto forth facts and other evi- by dence offered not inconsistent herewith." hereto agreed part of the policy, and made a statement attached to n the| facts, setting schedule out the name of insured after including state- coverage, charged, premium schedule provides ments, including description insured, of the automobile follows: terms, subject all the company
“This issued agreements forth on set provisions, conditions, limitations and hereby all of which are referred following pages ac- part hereof, assured made a all ceptance policy agrees.” company the insured provisions whereby insures
Then follow resulting arising claims expense loss or or direct ownership or maintenance damages by reason of insured exceeding of not described, in the sum and use of the automobile bodily injuries death claims made on account $5,000, if such are any person alleged been suffered accidentally suffered have *8 force. occurring in the is accident while as the result an investigate agrees to whereby, company provisions follow the Then in and the name policy and to defend by the all accidents covered groundless or not whether thereon suits behalf of the insured all any legal proceeding in against the insured pay all costs taxed by company. the against which is defended the insured among numer- provides, following the provisions, Then, these Conditions, Limitations and caption, things, under the ous other Agreements, as follows:
“Upon the any occurrence of loss irrespective or accident any injury damage whether or apparent at time, the the Assured give shall Company written immediate notice Home Of- to the at its . Louis, fice in Missouri, -agent, -St: or to its authorized fullest with the information obtainable at the time: if a claim is made on-account any give such accident shall like imme- -the Assured notice thereof diately made, after particulars: such claim is full if thereafter n , brought > claim, against suit is the Assured to enforce such forward, immediately- Company Assured shall every summons process or other- 'same soon as the shall have been when- served: the, by ever requested Company, effecting the Assured shall aid in securing settlement, nesses, evidence, information and of wit- attendance prosecuting appeals, possible and in and at all times render-all co-operation voluntarily shall not as- assistance: the Assured any negotiations sume or any-liability settlement or interfere any legal any expense, or proceeding claim, or incur settle cost, except Assured’s the written consent at own without reserves-the:right Company given: Company previously to settle brought any-such defend, Company may elect, or claim or as/the against Assured.
“No action lie Company shall to recover for loss or expense policy arising resulting under this upon claims damages Assured until the amount thereof shall have been fixed certain, by judgment against and rendered either final the Assured agreement after trial issue between the with the brought written Company, consent of the nor either event unless ’’ years within two thereafter. assigns
Defendant upon error here the refusal its instruction in assignment the nature evidence. This demurrer grounded plaintiff on the failure of immediate written notice required by says policy. accident as Defendant that liability the insured to defeats juncture
At we are confronted with what was said our Employers’ Indemnity Corporation, Supreme Court Cowell v. (2d)
326 Mo. 34 W. 705. In S. that case A judgment against Pupillo, insured, involved. was obtained Employers’ garnishee Indemnity Company was served as under judgment. garnishee ground an defended on the execution on policy by falsely terms of claim- insured had violated the ing was not be- at first that the automobile mentioned him, behalf, ing anybody in his or with his knowl- driven or by - rejecting this edge and-consent, the accident. In de- at the time of fense the court said: alleged
“It id that such conduct constituted a failure of Pupillo’s part to furnish insurer .all the knowledge information within his concerning the accident and to co-operation render assistance; hence was a breach' of :the contract part. on his It is pleaded that policy provides request of insurer' the assured shall *9 furnish such information cooperation and render and assistance. But pleadéd it is not request that such made, had been or that 'under the terms the-policy my or penalty any hind shall forfeiture folloio n the insured comply to provision, with that or that such failure'of will -release insurer duty the liability. to or failure from defend from -policy provides upon request shall things assured do the silent n as to the mentioned, is but his Appel so to-do. effect of failure f lant not-plead did or alleged claim that the withholding just until the trial’ Pupillo driving pre-' the car before of information'that malting any vented'it might it otherwise made, have nor from defense that it n couldnot have postponement obtained a trial it the so had pleaded desired. It that it notified1Pupillo of its withdrawal in time for him to secure- -other represent to him counsel 'at- the trial.-' If true,' that be it did not still have itself time to make whatever prepara presented by tion could be made to Pupillo’s meet the situation revela of the-facts, even-'though.-that1 tion revelation ? was-somewhat -belated thus, -him not to Pupillo guilty of conduct attributed
That expressly reply are allegations appellant’s fact. Those a conceded reply, appellant’s him to by plaintiff reply in a filed denied alleged facts, the prove the to burden appellant offered evidence appellant’s allegations it. B'ut had those proving which rested they would not constitute think proved admitted we reply or been Ornellas from, withdrawal appellant’s justification [See defense. 1007). not consider (2d) need supra (16 S. W. Moynihan, [We v. with alleged misrepresentation might been effect what have or its defense duty proceed respect appellant’s mis- that the alleged shown it been had therefrom to withdraw if making in appellant prejudiced representation disabled defense facts under a state of had given shown when information correct alleged facts are No such liable. would been which the insurer have* in ease.” hardly
The Cowell case can distinguished, principle, be in required bar. In the policy the case at Cowell case the the insured knowledge to furnish to the insurer all the within his information concerning requires In present policy accident. case give insured fullest information obtainable. In the case Cowell did not all his insured the insurer the information within knowledge. knowingly contrary, positive misrep On the he amade clearly resentation of a most material Yet fact. the court holds misrepresentation fact, of a material and concealment does recovery, any provision policy bar for for the absence of thereof, feiture, liability, or release from on or some account show ing thereby. prejudice to the insurer Fidelity Casualty Co., 176 Mo. S. W.
In Dezell provided suit, that, accident “this was an Among subject to the conditions the back hereof.” is issued following: “Im back of the were the the conditions company; given to the of accident must be mediate written notice as the -nature proof of loss be furnished as soon 'affirmative must legal proceedings determined, and extent of same can in case of death.” recovery must before six months be commenced conditions of ground that these Defense was made on the rejecting defense, court, complied with. The had not been said: ‘‘ policies in which the terms In above all cases discussed stipulated given, regard proofs loss are the notice proofs furnish such should such notice and that the in the But claims under forfeiture of all operate as a *10 and specified in none penalty is no such at bar there case policy, clause a discussing a similar ... pleaded. In ‘ ex- There- is no forfeiture has said: Supreme of Nebraska Court 1213 pressly provided for, and we are not supply authorized by , to one r . . construction. ‘‘ appears Thus it that courts a draw distinction policies between which call for the proofs notice death loss, stipulate to-give a failure that such notice or furnish such proof shall work a forfeiture insurance, policies for call such notice proofs but stipulation make no as to Consequence of failure comply to with such call. And whilst powerless the courts are to (cid:127) out strike the forfeiture feature in those contracts which the parties have seen it, they fit to insert are equally powerless -insert to a parties such feature when the have not- seen fit to do so.” Allman v. In Order of United Commercial Travelers of America, 277 678, Mo. 213 429, S. W. which was an action a life policy, the defense was give required failure to notice of death as the policy. court, in sustaining this defense, said:
‘'By contract provided itself it is give the failure to required thereby shall an work immediate forfeiture. There ambiguity is no language. parties power had the to effect to violation notice; for they and since given have effect, it this stipula court can no more strike this tion from the contract than it could insert it had the omitted it. Fidelity Casualty & 176 Co., Mo. l. c. [Dezell 281.]” Highland In Gratz v. Railway Co., 165 65 Scenic W. Mo. S.
223, the court said: open construction,
“Where terms a contract left are to question is, they subsequent amount a do condition or to a covenant, the inclination be hold it a A should covenant. con- dition that works a forfeiture is not and the law will favored not presume reasonably was intended used can as terms be construed to mean a covenant.” Shanebarg Society (Mo. App.), In v. National 263 W. Accident S. said;
512, which was an action on an accident this Court ‘‘ peremptorily The refusal of trial court verdict direct assigned plaintiff ease, made defendant error. It is said comply since showed that' failed to with the condition the evidence he twenty days policy requiring notice the defendant within may accident. It noted that does ex after the notice, pressly provide of failure to such' forfeiture case precedent giving recovery. For nor make thereof a condition favored; not think that we would be feitures are not and we do language employed by implication from the supply authorized to one Fidelity Casualty Co., Mo. Dezell v. [See (Mo. 1102; App.), Ins. S. l. 75 W. Zackwik v. Fire Co. c. S.
W. 135.]”
1214 Co., Casualty App. 622,
In v. 88 James United States Mo. S. 113 125,W. which was an action an court policy, on accident said: provision requiring
“The contained a the assured to days was notice to within ten- accident. notice defendant The There, given. not in case was of forfeiture given. policy, pro- was, however, part not There at another provisions and vision that a should not be claim valid ‘unless complied in- are with conditions contract of insurance regard express provision sured.’ We do not. this an clear and be forfeited for want of notice. should be a would There the courts will enforce express an for forfeiture before statement 279-282; Joyce Ins., 176 4 sec. Casualty Co., it'. v. Mo. [Dezell 3282.]” 282 S. W. Niagara (Mo. York App.), Malo Ins. Co. of New In v. policy, the court said: which was an action on a fire right party for think, undoubtedly,
“We that the verdict question case, unnecessary pass upon as to in this and it is giving of -the and refusal whether court erred instruction. provide in case of failure policy fails forfeiture writing part of the loss of insured to immediate notice and, sixty:days, defendant proof of loss within not or to make things, we are to do these desiring for forfeiture provide contract, although the justified reading forfeiture into the policy, provides action on place that ‘no another court of any claim, be sustainable recovery of for the shall after) all of compliance the insured until full equity law ” foregoing requirements.’ Com & Farmers’ Mutual Fire In Everett v. Insurance Patrons’ action on a fire (2d) 463, which was an (Mo. App.), 7 W. S. pany policy, court said: forfeited his point plaintiff attempts make the
“Defendant within loss failing statement of -recovery by a sworn right of to file 5,- on instruction refusal of defendant’s sixty days, and that for such-a by-laws provide true was error. It is question, for failure for a forfeiture provision, therein is no notice, but there notify. point is therefore’without.merit.” Ins. Life Hagelin v. Commonwealth effect: See, also, to the same Co., 151 Ill. Surety Empire State v. The 187; Windle Co., 106 Neb. 602; 69 Kan. Owens, v. Marine Ins. Co. Fire Paul 273; St. App. 144; App. Civ. Waggener, 44 Tex. v. Co. Pennsylvania Ins. Fire 316; Royal 46 Ore. Taber v. Co., Ins. Life New York v. Stinchcombe 82 Co., Ins. Marine Fire & 681; St. Mason 124 Ala. Paul Co., Ins. v. 177 Pac. (Okla.), Rardin v. Ins. Co. National 336; American Minn. 601.
1215 In Ash-Grove Lime & Portland Cement Co., Co. Southern Surety (2d) Mo. App. S. W. plaintiff sued on what is known as a fleet policy covering liability resulting insurance ownership, maintenance, or use the automobiles described in “subject exceptions, conditions, to the and limitations” agreed stated therein. It was also that the should be extended *12 to cover additional automobiles might the insured by obtain pur provided chase or trade the thirty assured should within days after acquisition their report company make to the of such automobiles. No report of acquisition the of the automobile involved in the suit was thirty days. made within The report failure to make such up was set as a defense^ The court bad, held the defense holding, in so said: provision “At imposed most the sub'sequent. a only condition As stated, policy the provision contains no forfeiture for per to failure form condition. the It is well in parties settled this State that do not a insert forfeiture in may clause the the courts not read such a (Mo. clause it. In into the case of Malo v. Ins. Co. 282 App.), 78, S. W. provided the for proof thereof, notice of loss and requirements fully that unless these met, were suit no could held, maintained. policy having provide The court failed to for to.give proof forfeiture for failure notice and furnish of loss within sixty days, available,. citing was not forfeiture numerous eases. To 1010, the same 222 Co., App. effect is the case of v. Ins. Everett Mo. n (2d) 7 Many support S. W. 468. Missouri cases this other rule which we need cite. ’ ’ . Hope Maryland In 102 Spoke Company Casualty Co., v. Ark plaintiff liability policy. was sued on a defended failure rejecting give insured to- immediate notice the accident. In court, authorities, reviewing defense after said: express stipulation declaring require-
“In absence of an this. a contract, ment be of the and therefore condition to essence it precedent recovery, do not think that- is correct to we requirement un- say that such a is of the essence of the contract to rights materially of the it is to affect the in less shown ’ ' ’- given case.” Casualty Surety 121 Neb. George Co., v. Aetna In to com- liability policy, a a defense made- for failure suit on notice, of ply provision policy requiring with immediate a the/ rejecting defense, said: court, accident. in Nebraska,' in with disfavor “Forfeitures are looked the contract be declared unless eases a forfeiture will not insurance Ins. v. forfeiture. Mutual Life provides’ for such specifically [Haas held; repeatedly that it will not Co., has 84 This court Neb. 682.] of a contract implication construction forfeiture impose a impos- contract specific provision contained there is no where 1216
ing forfeiture. The syllabus Hagelin rule is set out v. Com Co., Life Ins. Neb. 187, monwealth 106 as follows: ‘Where there specific provision in a forfeitures, of life insurance either whole partial, assured, on a breach of a-condition in; impose court.will not write one nor can the insurer afterwards creating new conditions a without the of the in forfeiture consent ’ (cid:127)sured, a and without new consideration. “ favored, ‘Forfeitures are not of insurance a contracts resulting indemnity construction in a loss of -the for which the in has will adopted except sured contracted not be effect parties.’ Holcombe, obvious intention Ins. Co. v. [Phenix Neb. 622. Haas Co., See Mutual Life Neb. Ins. 682.] provided “The case at bar insured should reading an accident, immediate notice of but a careful discloses contained no forfeiture clause. This court repeatedly has held denial of on account of comply policy requiring in a immediate happening forfeiture, insurer an accident amounts *13 where, a present that such will not enforced as in forfeiture be case, policy provide [Klingler a v. does not such forfeiture. ” Co., Ins. 193 Milwaukee Mechanics Wis. 72.] Liability County Employers’ Corp. In v. Jones Lumber Assurance injuries against liability for Co., employer 111 Miss. an insured April 18, 1913. employees, employee on The was sued an to his or of 15, 1911. No notice the accident May accident occurred of 23rd. given 1913. court met on June The until June The suit giving notice of the accident policy provided for the of immediate ground suit on the The defend the and of suit. insurer declined to accident, and also because it that insured had not notified of suit, the insured’s and defended promptly notified1 it was not ground. held that such The court on the same suit the insurer recovery, insured’s so give not bar the notice did failure Spoke Company Hope ivas said in holding quoted approval with what Casualty Co., supra. Maryland v. 163 Co., Ins. Wash. Shirley American Automobile
In
v.
failure of the
insurance,
defense
lihe
policy
of
brought against him
of the suit
give prompt notice
insured to
failure was
such
policy. The
court
.injuries covered
held
and,
holding, said:
action,
in so
insured’s cause
not fatal
declare that
express terms
not in
“Furthermore,
does
policy
this-particular
shall
condition.
for a breach
forfeited
it
against concealment
is directed
policy void
declaring clause
fraud, at-
insurance,
concerning'the-subject
facts
material
-
touching matters
swearing by the assured
fraud, or false
tempted
a failure
conceive covers
we' cannot
insurance, relating' to the
1217
to notify
company
pendency
of an action. Forfeitures,
must be remembered, are not favored either in law or equity, and
will not be
right
enforced unless the
thereto is clear and certain.”
also: Watson v. Ocean
[See
Accident &
Corp.,
Guarantee
28 Ariz.
573; Sovereign Camp, Woodmen of the World v.
Meek,
Ark.
419; Empire
Surety
State
Co. v. Northwest Lumber Co., 203
417;
Fed.
Parmelee v. Aetna Life Ins. Co., 166
741;
Fed.
Surety
National
Co. v.
Railroad, 200
675;
Fed.
Gunsul American Surety Co., 308
312;
Ill.
Melcher v. Ocean Accident & Guarantee
Corp.,
N.
51;Y.
Mass
achusetts Protective Ass’n v. Daugerty,
469;
87 Colo.
Beehler v. Gas
Co.,
This is made manifest quoted the cases cited. To this end we have from a number of cases in extenso. these present policy provides
In the case the the insured shall accident, immediate notice of the but it is not claimed “that under terms of the penalty forfeiture or kind shall comply follow provision, failure of the insured to or that will duty from the release insurer to defend or such ’’ liability. provides notice, that the insured shall *14 as to of his “but is silent the effect failure so to do.” It is not shown by appellant comply that failure of the or claimed the insured to ‘‘ strictly provision prevented any it' the notice from .de making with plaintiff’s might against suit the fense it otherwise have made” to Nor such “disabled or prejudiced was it insured. shown that making v. Employers’Indemnity in a appellant defense.” [Cowell express policy releasing, the is in Corp., There no .word supra.] the -failure,to give of liability immediate the ac for insurer from notice . " ‘ ‘ one supply not to construction cident, and we are authorized Guaranty Co., Fidelity supra.] [Dezell cited-, quoted only have not that we will be observed from It involving, liability also eases other involving insurance .but cases accident, Ap- fire, insurance, such as life of classes insurance.. li- to. be made there that between.
pellant contends distinction is-a ability insurance and other classes of insurance. This contention is soundly satisfactorily answered, think, Hope Spoke we in Co. v. Maryland Casualty following language: Co., supra, in the urged construing
“It in in a that, stipulation is a of that kind liability employer’s a distinction should made in- between perceive surance and other kinds of insurance. "We no reason such requiring purpose distinction. of notice is the insurer an The to investigate affecting opportunity to facts and circumstances the the liability thereof. for en- question its and the extent The reasons of forcing requirement, therefore, apply of insurance as to one class the well another.” pertinent provision
It is observe here that the the to giving is the of immediate notice the accident not any affecting risk It to with suc- way the insured. has do matters ceeding brings liability which the covered the the event about liability insured, liability insured is the the injured instantly upon the of the party, happening arises ac- consequent injury. arising liability of cident and the judg- injured party does not await the rendition of insured to judgment rendered, is it becomes but the conclusive ment. When existing previously liability, and affords means evidence liability may In other through be enforced. which satisfaction of adjudicates merely judgment the fact of the words, the happening accident, and concludes the arose respect liability. The insurance co-extensive parties with liability. with such already or case in- said, it is shown claimed in this that the
As not having injury reason of not received an surer loss or suffered insurer had notice of the accident notice the accident. The earlier time ample appear and defend pendency and of the far record discloses all the witnesses were available So as the the suit. damage suit, and, whole, whatever is on the no the trial of at giv- by reason of the delay have to the insurer shown resulted petition summons and served on ing of the accident. The insurer, evidently promptly ivere transmitted to insured suggestion many months thereafter. There tried for suit was not part faith on the of the insured fraud or bad in the record ap- It give the insurer notice of the accident. failing promptly regarded the so because he accident as failed to do pears he any suggestion in the record collusion is there trivial. Nor injured charged Nor is party. insured part insured, sued claim was made a fraudulent shown fraudulent, the insurer did have that, the claim was upon, or *15 receiving notice of accident and the after the ample opportunity, witnesses, expose the investigate accident, suit, obtain the to
1219' unwilling the fraud. In this state are of the record we to hold that recovery the liability insurer is entitled for the to defeat incurred clearly delay the insured and covered the on account of the giving shown in notice of the accident.
Appellant, argument, policy here, the fact stresses terms, provides express subject agreement that the is insurance to the give accident, insured shall notice immediate says agreement that this to notice a makes the condi precedent entitling tion arbitrarily the insured defeat insurance agreement. accept pro breach We cannot this view. The subject agreement vision that the insurance is to the notice giving falls far short for failure to to defeat the insurance agreement perform specified performance, within the time its pro showing prejudice thereby. without insurer to the subject agreement vision means insurance is construed that the ought is, regard construed, proper it with a for the to be v. consequences supra: of its breach. cases Dezell Fidelity [See Co.; Gratz Casualty Highland Railway Co.; v. James v. United Scenic Casualty Co.; Niagara Fire Ins. States and Malo v. Co.] is certain It well to reminded here of fundamental canons be (1) relating contracts, as follows: construction to insurance liberally the insured and policy is to be construed favor of constructions, insurer; (2) susceptible is of two policy where the equally reasonable, that construction most favorable to the assured in- adopted, though in intended otherwise even fact must be possible, surer; (3) construed, as not to de- must be so (4) indemnity; provisions in the claim to feat the strongly most construed looking must be to the avoidance Security Co., v. Mutual Life Ins. against the insurer. [Howell Security Ins. 411; Mutual Life 253 W. State ex rel. App. 692, S. Mo. 607, 267 W. Allen, Mo. S. v.
Co. 379.] rule, too, applicable to contracts reminded, of the It well to be State, that time is not or recognized in uniformly generally, expressly contract, contract unless the dinarily of the essence subject-matter or con nature declares, or from the unless so that the circumstances, apparent it is surrounding tract, or the 478; v. Johnson 88 Mo. Richards Grimes, v. so intended. [Mastin 424, 143 Hassell, App. S. 53; 161 Mo. v. 261 W. Carroll (Mo.), S. 243 W. App. 280, Nunn, 211 Mo. 835; Lane S. 427.]
W. lively con- observe, passing, that may impertinent It having importance to it about manifests appellant now cern in view of the lack accident, impressive, immediate notice, importance of such by it, respecting manifested of concern appellant, If the the insured. sold it wrote when it regarded insured, immediate it sold to wrote the when *16 1220 notice the importance accident of such to it that the the failure of
insured to operate immediate notice should to release it liability, it have easy would been an matter for it plain- to have ly provided in the policy that such should have that effect. having Not ought so provided, appellant permitted, when called upon by the protection assured for purchased for, the paid he and supply to the exegesis omission by construction, or an of learned counsel on points the fine the relating law precedent to conditions subsequent. and Paper
Columbia Casualty Fidelity Co., Stock Co. v. Mo. 104 App. 78 S. by appellant W. is cited relied as sus- taining its view. As we construe the in that opinion case it does not hold that requiring the notice of the is immediate accident a condition such as defeats insurance for breach in ab- the its the any showing opinion sence of to prejudice merely the insurer. holding. respectable authority concedes there is so that (Mo. Company v. Western Finkle Automobile Insurance App.), (2d) appellant by support- S. W. relied cited and as ing supports appellant’s its view. We not think that case view. do insuring Joseph Harry It involved a Gruverman and against upon law liability imposed loss from them Gruverman maintenance, use, of ownership, their automo- reason of the injured Plaintiff was the biles. an accident one of assureds’ against duly A was set for trial. suit the assureds down automobiles. the weeks was to be tried insurer dis- two before the cause About being Not to the had absconded. able locate that assureds covered case, judgment assureds, the insurer withdrew from the the against plaintiff the assureds without favor of was rendered garnishment proceeding by In being the suit. the made to defense insurer, absconding against was held it plaintiff appear plaintiff’s at the trial of the suit their failure to assureds shown, good thereto, was a as witnesses and against them agree- of the assureds’ to a breach defense, since this amounted suit, of the which insurer in defense co-operate with ment to de- either witnesses or clients without necessarily left insurer unable position a was suit, placed the insurer in fend the holding in course, Of that case the suit. defend properly present appellant’s view the ease. authority support no (2d) 123, 65 S. the insured made (Mo. App.), W. Wahl Nevil In re- provisions comply with the whatever to attempt against The insurer was the insured. specting pending, nor there the suit was as to where informed never given copy a summons wasi ever the insurer evidence judg- Moreover, a after default policy.- by required petition at- employed insurer insured, rendered ment torneys purpose for the having judgment default set aside, in represent order to the insured and have the ease its merits, tried during term judgment which court at was rendered. These attorneys prepared presented to the insured motion to have judgment aside, they set file had under the law.' The insured refused sign motion for the reason that she wanted to pay the insurer plaintiff, sister-in-law, thus, who was her husband’s *17 in evident insured, obstructing collusion with the the insurer in its merits, efforts defend flagrant the suit her on its violation of provision policy requiring co-operate of her with the - ease, course, insurer the defense of That the suit. is authority not here. (Mo. 105, v.
In Hill Jackson App.), appellant, S. W. cited question respecting there was no of the involved insurer to policy. insurance for of the provision breach the notice defeat Paper Co., App. National Box Co. Aetna Life v. Insurance Mo. 156 S. W. City Appeals, decided the Kansas Court of advised, only far State, case so as we are wherein the in- recovery been
sured under has denied on account of case, think, That the breach the notice we disapproved court, impliedly later decisions of the same here- cited, decided, course, long prior to the decision and was inbefore Supreme Cowell case. of our Court in.the . jurisdictions supporting appellant’s decisions in other
There are harmony with out of the de- here, contention but such decisions..are weight' authority elsewhere. and the cisions State judgment of .the the circuit recommends that The Commissioner affirmed. court be adopted isC., Sutton, foregoing opinion
PER CURIAM: The judgment of circuit court is ac- opinion of the court. The JJconcur; Hostetter, P. Mc'Cullen, cordingly affirmed. Becker and J., sitting. Company, Corporation, Relator, ex rel. Auto Finance
State Judge Court Landwehr, Frank Circuit Hon. City Respondent. (2d)W. Louis, of St. 144. 71 S. Opinion April Appeals. 1934. filed Louis St. Court