Ward v. Casualty Co. , 71 N.H. 262 ( 1902 )

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 against the plaintiffs might not prejudice the defendants in preparing for a defence 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. Chamberlain v. Insurance Co., 55 N.H. 249,265, 268; May Ins. (1st ed.), s. 462; Ib. (4th ed.), s. 462; Donahue v. Insurance Co., 56 Vt, 374; Lockwood v. Assurance Co., 47 Conn. 553, 568. 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. Tyler v. Webster, 43 N.H. 147, 151; State v. Plaisted, 43 N.H. 413; Chamberlain v. Insurance Co., supra, 265; Austin v. Ricker, 61 N.H. 97; Ela v. Ela, 70 N.H. 163, 165.

The defendants further allege that the plaintiffs did not give full particulars of the accident. The provision of the contract requiring full particulars did not call for unnecessary details, but only such as would enable the defendants to determine whether a claim was likely to be made against the plaintiffs. Nor did it call upon the plaintiffs to make an exhaustive investigation of the circumstances attending the accident, or to decide what the facts were upon a consideration of conflicting evidence. The request, made by the defendants' resident managers in Boston of persons insured in the company, that they would notify the defendants' attorneys by telegraph or telephone of an accident, so that they might send a person at once to make an investigation, shows that the defendants so understood the matter. The purpose of the notice was to put the defendants upon inquiry rather than to give them full information concerning the accident. Whether the particulars furnished by the plaintiffs were sufficiently full under the circumstances to answer the requirement of the policy, is also a question of fact to be determined in the superior court. Stone v. Insurance Co., 69 N.H. 438.

The provision in the third condition of the policy, that the assured when requested by the company shall aid in securing information and evidence, is of a similar nature, and should be interpreted and applied in accordance with the foregoing views.

To the defendants' claim that their liability under the policy was ended by the plaintiffs' failure to forward to the defendants' counsel the summons or paper served upon the plaintiffs in the O'Connell action immediately after service, in compliance with the counsel's request, it is a sufficient answer that there is no provision in the policy making such failure a cause of forfeiture of the plaintiffs' rights. Such failure would be competent evidence on the question whether the plaintiffs reasonably aided the defendants in securing information concerning the action. Its weight would depend upon the circumstances, and must be determined by the tribunal charged with the duty of deciding questions of fact.

The court ruled pro forma that the correspondence and telegrams were a substantial compliance with the conditions of the policy, and found for the plaintiffs. If this means that the questions were treated as matters of law, there was error in the course adopted and the finding must be set aside. If it means that upon a consideration of the correspondence and telegrams it was found as a fact that there was a substantial compliance with the condition of the policy, the only additional question of law raised by the defendants' exception is whether there was sufficient evidence to warrant such a finding. The evidence was ample. Not to mention any other testimony, the request made by the defendants' counsel of the plaintiffs, about August 20, 1900, — fifteen months after the accident and fourteen months after the last request for further information concerning the accident, — that the plaintiffs would send the summons in the O'Connell action to the counsel in order that they might take the proper steps to defend the plaintiffs, very strongly shows that the defendants did not understand that their liability had ceased because of any prior failure of the plaintiffs to comply with the requirements of the policy. It was a practical admission that the prior efforts of the plaintiffs to fulfill the terms of the policy had been reasonable both as to form and seasonableness. Apparently, the defendants then had full information concerning all the facts covered by the admission, except perhaps the date when O'Connell's action was begun. A finding that a notice of the beginning of the suit, given eighteen days after the service of the writ upon one of the plaintiffs and two days before its service upon the other, was "immediate" within the meaning of the word as used in the policy, would not be unsupported by the evidence.

The general finding in favor of the plaintiffs is understood to include a finding of all facts in their favor that are necessary to support the general finding, and so to include findings favorable to them upon the questions of fact above mentioned. The pro forma ruling is understood to have related to the facts so found. Accordingly, unless the defendants procure an amendment of the case showing that this construction is erroneous, their exception must be overruled.

Exception overruled nisi.

All concurred.