Campbell v. Preferred Mutual Accident Ass'n , 172 Pa. 561 ( 1896 )


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  • Opinion by

    Mr. Justice McCollum,

    The only question presented for our consideration on this appeal is whether the plaintiff complied with the condition in his policy in regard to notice of his injury. He received it on the 7th of May and the condition required that he should give notice of it to the company within the next ten days, or' forfeit his claim to compensation for it under his policy. It *565was therefore necessary for the plaintiff, in order to maintain his suit, to show that the notice demanded by the condition was given to or waived by the company. The plaintiff claimed and testified on the trial that he gave the notice within the time prescribed by the condition, and the verdict shows that the jury were satisfied that he did so. The company now contends that his testimony on this point was so confused and contradictory that the court ought to have withdrawn it from the jury and directed a verdict for the defendant on the ground that the notice was not given in time. Before considering this contention on its merits it is proper to note that while the company requested the court to say to the jury that under all the evidence the verdict should be for the defendant it also requested an instruction that if they found from the testimony that the plaintiff failed to give the notice required by the policy he could not recover. The first request was refused and the second was affirmed. There was no request for an instruction that the plaintiff’s testimony as to notice was insufficient to warrant a finding that notice was given, unless the request for an instruction to find for the defendant can be regarded as including it. It seems to us therefore that the question presented on the appeal was not fairly raised on the trial. If there are several facts in dispute and the establishment of all of them is essential to the maintenance of the suit, the defendant who questions the sufficiency of the evidence to support the plaintiff’s claim as to one of them ought in his request for instructions to designate the fact to which his contention applies. We do not decide that the failure of the company to request specific instructions on the point under consideration is fatal to their appeal, because this is a matter not mentioned on the argument or in the paper-books. What is here said about it may be regarded as a suggestion by the writer of what seems to him as a proper practice in a case like the one now before us.

    It is true as contended by the company that the plaintiff’s testimony in regard to the time of the notice was somewhat confused and contradictory, and the fact that it was so furnished a basis for a persuasive argument to the jury against it. But a careful examination of it has failed to convince us that the court would have been justified in withdrawing it from the jury and directing a verdict for the defendant. The contra*566dictions in his testimony affected his credibility as a witness, and the jury were the proper judges of that. We cannot find in the cases cited by the company any warrant for holding that it was error to submit to the jury the question of notice. The evidence that it was properly given was more than a scintilla. The plaintiff testified positively that it was given to the company within the time prescribed by the policy. The jury saw him upon the stand and heard him testify. The testimony was competent and it was for them to say what weight should be given to it.

    The specifications are overruled.

    Judgment affirmed.

Document Info

Docket Number: Appeal, No. 121

Citation Numbers: 172 Pa. 561

Judges: Dean, Fell, McCollum, Mitchell, Sterrett, Williams

Filed Date: 1/6/1896

Precedential Status: Precedential

Modified Date: 2/17/2022