Opinion
December 5, 1950 —
January 9, 1951.
APPEAL from an order of the county court of Door county, circuit court branch: GROVER M. STAPLETON, Judge. Affirmed.
For the appellant there was a brief by Lehner Lehner, Adolph P. Lehner, Howard N. Lehner, and Eugene E. Behling, all of Oconto Falls, and oral argument by Adolph P. Lehner.
For the respondent there was a brief by Herbert Johnson of Sturgeon Bay, attorney, and H. S. Humke of Sheboygan of counsel, and oral argument by Paul L. Axel of Sheboygan.
This is an action for damages commenced by Cash Heimbecher, plaintiff, against Carl Johnson and Cheese Makers Mutual Casualty Company, defendants, on August 17, 1949. From an order entered June 5, 1950, denying motion for summary judgment of dismissal of the action as to defendant Cheese Makers Mutual Casualty Company, the company appeals.
It is alleged in the complaint that on November 22, 1948, the defendant Cheese Makers Mutual Casualty Company, hereinafter referred to as the "company," had issued to defendant, Carl Johnson, a policy of casualty insurance, in effect on that date, whereby the company agreed to defend any suit and pay any judgment based upon the negligent operation of Johnson's automobile; that on November 22, 1948, as the result of Johnson's negligent driving of his automobile it collided with that of plaintiff causing injuries to plaintiff and damages to his automobile for which he seeks recovery.
Among other things it is alleged in the answer of the company that there was failure on the part of Johnson to comply with a policy provision requiring him to give prompt written notice of the accident and its circumstances to the company and failure on his part to co-operate with the company in its preparation for the defense of the action.
In support of its motion for summary judgment dismissing the complaint the company filed an affidavit of its Madison home-office manager alleging the failure to give the notice and that no such notice was ever received. To the same effect there was an affidavit of the company's Milwaukee office manager. The latter affidavit sets forth further Johnson's failure to give the company notice of his removal to Milwaukee from Sawyer, Wisconsin, where he resided when the policy was issued. It appears from other affidavits that notice of the accident first came to the company by letter from plaintiff's attorney dated May 3, 1949, suggesting a discussion concerning settlement; that an effort was then made by the company to locate Johnson and in February, 1950, it was learned that he had removed to Milwaukee; his address at that place was ascertained at that time.
In the counteraffidavit of Johnson it is alleged that some time before December 25, 1948, the policy was brought to him at the Door county jail, and that on the day of its receipt he wrote a letter addressed to the company at Madison advising it of the accident and of some of the circumstances attending it, and gave it to the sheriff for mailing. In his affidavit the sheriff states that at the time in question he was in charge of the prisoners in the jail, that he was frequently called upon by prisoners to mail pieces of mail for them and that he promptly deposited all of such mail in a United States post office.
In a statement given to plaintiff's attorney before suit Johnson said that when he was first placed in jail he wrote a letter describing the accident to the company addressed to the company's office at Milwaukee; in the same statement he said that the letter was addressed to the state motor vehicle department.
The affidavit of plaintiff's attorney recites that there are only three witnesses to the accident: Johnson, the plaintiff, and plaintiff's father, all of whom are in Wisconsin and available as witnesses; the names and addresses of other witnesses who were at the scene shortly after the accident and are available for the trial are given; that he believes that there are no other material witnesses; that Johnson was confined in the Door county jail from December 6, 1948, to January 20, 1949; that prior to August, 1949, he had discovered Johnson's address at Milwaukee, Wisconsin; and concludes that by diligent effort the company might have made the same discovery.
It is undisputed that the company received no notice of accident and it contends that to create liability on its part it must be shown not only that the notice was sent but also that it was actually received. The policy provides that "notice shall be given" as soon as practicable. However, neither its provisions nor any statute requires that it be shown that it was received, nor does either provide an exclusive manner of giving notice. That the company recognizes more than one method is indicated by the fact that the policy carries on its face in large letters a direction to " send all notices of accident" to its Madison address without prescribing the manner in which it is to be sent.
To the proposition that there must be proof of receipt of the notice the company cites Hotel Hay Corp. v. Milner Hotels, Inc., 255 Wis. 482, 39 N.W.2d 363. In that case the provision in the contract respecting notice was that the one party "agrees to notify" the other, contemplating, of course, that knowledge of the facts contained in the notice be brought to the other party. In the instant case the policy provisions contained in the body thereof require that notice "shall be given," from which it should perhaps also be implied that actual knowledge of the facts be brought to the company. However, as has been pointed out, upon the face of the policy, in large letters, is a direction to send notice. Clearly the latter direction does not contemplate that receipt of the notice be established or that it be shown that the information required to be included in the notice be actually brought to the knowledge of the company.
The existence of the two apparently inconsistent directions creates an uncertainty of meaning and, under the rule that provisions which tend to limit the liability of the insurer or which are ambiguous should be construed most strongly against it, Kelly v. Fidelity Mut. L. Ins. Co. 169 Wis. 274, 172 N.W. 152, there is compliance when the notice is sent as directed on the face of the policy.
We conclude that if it be established that notice was sent by the assured in the ordinary mail and within the time limited by the policy or the statute there was compliance.
It is not surprising that counsel is impressed by the discrepancy appearing in Johnson's statements as to the address to which he claims he sent the notice — in the one he says that he addressed it to the company at Milwaukee; in the other, that he sent it to its Madison office. But the court is without power on a motion for summary judgment to say that his last statement, that he sent it to Milwaukee, is unbelievable, and upon that ground determine that the notice was not sent. That is a matter which affects his credibility and is to be considered by the trier of the facts when the ultimate issue is determined.
Whether or not Johnson sent the notice presents a substantial issue of fact. It has been consistently held by this court since Prime Mfg. Co. v. A. F. Gallun Sons Corp. 229 Wis. 348, 281 N.W. 697, that under those circumstances summary judgment cannot be entered but the case must proceed to trial.
Sec. 204.29 (3), Stats., provides:
". . . The deposit in any post office by or for the insured of a registered, postage prepaid envelope, containing the proper notice of injury within twenty days after the injury addressed to the company, issuing the policy or certificate, shall be a sufficient service of notice of injury."
This provision does not declare that the manner of giving notice therein referred to is exclusive.
The company contends further that Johnson's failure to notify it of his removal and change of address to Milwaukee results in failure to co-operate as required by the policy, and that we should so determine as a matter of law. In his affidavit plaintiff's attorney alleges that if the company had made due and diligent effort to find and locate Johnson or find his address he could have been located, and in support of that conclusion states that he had readily learned of Johnson's Milwaukee address prior to August, 1949, by inquiring of the parents of Mrs. Johnson who then lived in Sawyer, Wisconsin: he describes other facilities by the use of which the company might have located the assured and obtained his address. The issue as to whether the company exercised reasonable diligence in ascertaining Johnson's whereabouts and his address is thus raised. To disclaim liability upon the ground of failure of the assured to give notice of a change address it must have exercised reasonable diligence in ascertaining his whereabouts. Finkle v. Western Auto. Ins. Co. 224 Mo. App. 285, 26 S.W.2d 843, and cases cited in Anno. 72 A.L.R. 1454: 98 A.L.R. 1468; 139 A.L.R. 777. What constitutes lack of co-operation is usually a question of fact. Anno. 72 A.L.R. 1454.
Appellant cites a number of cases in support of its contention that we should hold as a matter of law that Johnson's failure constitutes lack of co-operation. We have carefully examined these cases and find that in each of them where such conclusion was arrived at it was done upon undisputed facts or where no other permissible inference might be drawn from the evidence in the case. None of them may be considered as being out of harmony with the rule above stated.
It is claimed by appellant that there was failure by plaintiff to comply with the provisions of sec. 270.635, Stats., which require that if a motion for summary judgment is made on behalf of the plaintiff it shall be supported by his affidavit that "there is no defense to the action." This motion was not made by plaintiff. The requirement of the statute is that the moving party upon an application for summary judgment make affidavit that he "believes that there is no defense to the action or that the action has no merit (as the case may be)." Neither averment is required of the opposition.
By the Court. — Order affirmed.