Sheafor v. Standard Accident Insurance

Kerwin, J. The injury complained of in this case is the loss of an eye, alleged to have been caused by an accident which occurred on May 13, 1915. The facts, so far as material, are sufficiently covered by the findings set out in the statement of the case. The policy provides, among other things, 'that written [311] notice of injury must be given within'twenty days after the date of the accident, and further provides: “Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the company at Detroit, Michigan, or to any authorized agent of the company, with particulars sufficient to identify the insured, shall be deemed to be notice to the company. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.” The main question in the case is whether the provision of the policy respecting notice was complied with. ■ As appears from the findings and evidence, the injury was for some time after the accident regarded trivial and did not appear to affect the plaintiff’s eye. It was not until about June 18th that plaintiff’s eye caused him any inconvenience or showed any sign of having been injured by the accident. On June 21st plaintiff consulted Dr. Dwight, an eye specialist, whom he informed of the accident, and the doctor could not at that time say that the injury was due to the accident. Immediately after consulting Dr. Dwight plaintiff called on the agent of the defendant, Mr. Davies, who had written the policy, and informed him of the accident and consulted him respecting the necessity of giving notice of the accident to the defendant, and advised him concerning his consultation with Dr. Dwight. Plaintiff also asked Mr. Davies whether it was necessary to give immediate notice of the accident and make a claim for indemnity. Mr. Davies thereupon informed plaintiff that the information furnished him bjr plaintiff was sufficient, and that plaintiff would lose no rights while awaiting the final determination of Dr. Dwight as to the cause and extent of the injury. The plaintiff thereafter took continuous treatment from Dr. Dwight, and on July 31st following was informed by the doctor that the. sight of his eye was lost and that such loss was due solely to the accident. [312] On August 4th following, due notice of the injury was given to the defendant, and the question arises whether this notice satisfied the provisions of the policy. The court below found that the notice was sufficient, and this court is of opinion that the finding is supported by the evidence. The evidence shows that Dr. Dwight had not definitely decided until July ,31st that the accident was the cause of the injury and then so informed the plaintiff. The evidence also shows that the notice was served as soon as reasonably possible after July 31st. It is conceded by counsel for plaintiff that the former decision (166 Wis. 498, 166 N. W. 4), so far as it goes, settles the law of this case. On the former appeal, in considering the provisions of the policy respecting notice, this court said: “The policy requires that written notice of ‘injury’ must be given within twenty days after the ‘date of the accident causing such injury,’ unless it be shown not -to have beeii reasonably possible to give such notice within the time provided, and that it was given as soon as reasonably possible. The ‘injury’ and the ‘accident’ causing it are recognized as separate things by the policy itself, and the notice required is notice of ‘injury,’ not of the ‘accident.’ In the present case the injury is, of course, the loss of the eye, the accident the blow on the head. It is very plain that it was not possible for the claimant to give notice of the injury, i. e. the loss of the eye, within twenty days after the accident, because there was no such injury within that time, either actual or threatened, so far as any one could know. One cannot give notice of a fact which he neither knows nor has any means of ascertaining. “The only question remaining is whether the allegations of the complaint show that written notice was given as soon as reasonably possible after the plaintiff obtained knowledge that there was an injury which was the result of the accident. We think this question must be answered in the affirmative.” It is further contended by respondent that the proof was sufficient to show that defendant waived written notice or [313] was estopped from asserting that no sufficient notice of the injury had been given. We do not find it necessary to decide this question and hence express no opinion upon it. Counsel for appellant contends that it was préjudicial error to allow plaintiff, after the jury was discharged, to recall Dr. Dwight to correct his testimony. Dr. Dwight had testified in his examination before the jury was discharged that July 17th was the date when he determined that the accident was the sole cause of the injury to the eye, and then so informed the plaintiff. When recalled after the jury had been discharged and upon examination of his records he discovered that he was mistaken and that the date when he determined that the accident was the sole cause of the injury was July 31st, at which time hé so informed the plaintiff. It seems to be established as a verity that Dr. Dwight was mistaken in his former evidence and that the time he informed plaintiff that the accident was the sole cause of the injury to the eye was July 31st and not July 17th; and since it is admitted that notice to the company was given August 4th next, it must be held as a matter of law that it was given “as soon as reasonably possible.” The corrected evidence therefore raised no issue of fact for the jury, and defendant was not prejudiced by its waiver of a jury trial in moving for a directed verdict. We find no prejudicial error in the record. By the Court. — The judgment is affirmed. Winslow, C. J., dissents.