Mewborn v. Employers' Liability Assurance Corp.

Stacy, C. J., after stating tbe case: Tbe accident occurred 28 June, 1925; tbe extent of tbe injury was not known until 8 August following; written notice was given to tbe defendant 12 September thereafter; "Was this a sufficient compliance with “Condition C” of tbe policy,'requiring immediate written notice of tbe accident, under all tbe facts and circumstances disclosed by tbe record? We think the evidence was such as to carry tbe question to tbe jury. Tbe trial court was correct in refusing to bold, as a matter of law, tbat tbe notice was not given as soon as reasonably practicable under tbe circumstances, or without unnecessary delay, and in submitting tbe question to tbe jury to determine whether tbe plaintiff bad acted with reasonable promptness in the matter. Tbe expression “immediate written notice,” as used in tbe policy, we apprehend, was intended to impose upon tbe plaintiff tbe exercise of reasonable diligence in giving tbe required notice, which, under tbe apparent weight of authority, should be measured by bis ability and opportunity to act in tbe premises. Carey v. Farmers, etc., Ins. Co., 27 Or., 146, 40 Pac., 91; Rhyne v. Ins. Co., 196 N. C., 717, 147 S. E., 6. *159 The following from the opinion of the Supreme Court of New Hampshire in the case of Ward v. Md. Cas. Co., 41 Atl., 900, has been approved by the Supreme Court of the United States (Fidelity & Deposit Co. v. Courtney, 186 U. S., 342), and in many jurisdictions, as the proper construction of such a provision in a contract of insurance: “The defendants’ liability depends in part upon the answer to the question whether the plaintiffs gave them 'immediate’ notice in writing of O’Connell’s accident, the claim made on account of it, and the suit that was brought to enforce the claim. This involves an ascertainment of the meaning of the word 'immediate’ as used in the policy. The word, when relating to time, is defined in the Century Dictionary as follows: 'Without any time intervening; without any delay; present; instant; often used, like similar absolute expressions, with less strictness than the literal meaning requires — as an immediate answer.’ It is evident that the word was not used in this contract in its literal sense. It would generally be impossible to give notice in writing of a fact the instant it occurred. It cannot be presumed that the parties intended to introduce into the contract a provision that would render the contract nugatory. As 'immediate’ was understood by them, it allowed the intervention of a period of time between the occurrence of the fact and the giving of notice more or less lengthy according to the circumstances. The object of the notice was one of the circumstances to be considered. If it was to enable the defendants to take steps for their protection that must necessarily be taken soon after the occurrence of the fact of which notice was to be given, a briefer time would be required to render the notice immediate according to the understanding of the parties than would be required if the object could be equally well attained after considerable delay. For example, a delay of weeks in giving notice of the commencement of the employee’s suit might not prejudice the defendants in preparing for a defense of the action, while a much shorter delay in giving notice of the accident might prevent them from ascertaining the truth about it. The parties intended by the language used that the notice in each case should be given so soon after the fact transpired that, in view of all the circumstances, it would be reasonably immediate. If a notice is given 'with due diligence under the circumstances of the case, and without unnecessary and unreasonable delay,’ it will answer the requirements of the contract. . . . Whether the notices were reasonably immediate — like the kindred question of what is a reasonable time — are questions of fact that must be determined in the Superior Court.” Speaking to the subject in Harden v. Ins. Co., 164 Mass., 382, it ivas said by Morton, J., delivering the opinion of the Court: “Whether the *160 statement was 'forthwith rendered’ depended on whether, taking all of these circumstances and considerations into account, the plaintiff used due and reasonable diligence. If he did, then it was 'forthwith rendered,’ within the fair meaning of the policy; and whether he did or did not was a question of fact for the jury.” Again, in Woodman Accident Assn. v. Pratt, 62 Neb., 673, 87 N. W., 546, Holcomb, J., after a full review of the authorities, says: “In respect of the rule of construing provisions in a, contract of insurance for notice of accident and injury or loss or damage and proof of the same to be given ‘forthwith’ or ‘immediately’ or within a stipulated time, the authorities are not entirely harmonious, and yet from the examination we have been able to make in the limited time a.t our command the great weight of authority is to the effect that the exercise of due diligence and reasonable effort on the part of the insured to meet the requirements thus imposed, to be determined under all the circumstances as disclosed in each individual case, is deemed a compliance with such provisions although not within the time according to the strict letter of the terms used in defining the same.” It may be conceded that the decisions on the subject are variant, some holding that “as a man consents to bind himself, so shall he be bound” according to the literal meaning of the terms used in the contract, while others seemingly take a more liberal view of what the parties really intended,' look with disfavor upon forfeitures, and sustain a recovery even in the face of a failure strictly to comply with the requirements of notice, where the notice given complies substantially with the spirit and meaning of the contract. 14 R. C. L., 1333. With this latter view, our own decisions are in full accord. Allgood v. Ins. Co., 186 N. C., 415, 119 S. E., 561; Grabbs v. Ins. Co., 125 N. C., 389, 34 S. E., 503. It should be observed, perhaps, that we are not now dealing with a provision requiring- something to be done before loss or injury, such as the payment of premiums at a stipulated time, or observing conditions which affect the nature and desirability of the risk. Such stipulations are usually regarded as of the essence of the contract, and on their compliance depends the life and success of the insurance company. Clifton v. Ins. Co., 168 N. C., 499, 84 S. E., 817. It is also conceded that there is a reasonable basis and valid cause for inserting the present stipulation in the contract. But the risk assumed has neither been increased, nor the rights of the defendant jeopardized, by the delay of the plaintiff in giving notice of the injury. We are not, therefore, disposed to adopt a hard-and-fast rule which would relieve the defendant from liability, voluntarily assumed on its part for a consideration, and deny to the plaintiff all right of recovery. *161 There was nothing said in Peeler v. Casualty Co., 197 N. C., 286, which, when properly interpreted, militates in any way against our present position. While the ease is not altogether free from difficulty, we have concluded that, on the whole record, the verdict and judgment should be upheld. No error. Bbogdekt, J., dissents.