Peoples M. Accident Ass'n v. Smith , 126 Pa. 317 ( 1889 )

Opinion,

Me. Chief Justice Paxson :

The plaintiff brought this action of assumpsit in the court below against the defendant company, on a policy or certificate of membership, for the loss of sight of an eye alleged to have been caused by an accidental stroke of a whip when handled by himself. The main question is whether he was sufficiently prompt in giving notice to the company of" the accident. The policy contains this provision: “ Provided further, In the event of any accidental injury, for which a claim may be made under this certificate, immediate written notice shall be given the association in Pittsburgh, giving full particulars of the accident and injuries; and sufficient and satisfactory proof of loss, either for death or relief, shall be furnished the association within six months of the happening of the accident, otherwise all rights to recover under tins certificate for said accident shall be null and void and forfeited to the association.”

The accident which resulted in the loss of the plaintiff’s eye occurred on September 4,1887. He was a physician, and while riding in his buggy, engaged in his professional duties, by some accident his eye was struck by the lash of his whip. It was not at first thought to be dangerous, at least to the extent of losing his eyesight, and for some days’ the plaintiff treated the injured eye himself. It was not long before he was confined to his room and called in other medical aid. He testified that it was not until the fifteenth of the following October that he became convinced that he would lose the use of his eye. He gave a formal notice in writing to the company of the accident on October 1st and claimed for said loss. The contention of the defendant is that the notice should have been given immediately after the accident, and the court below was asked to so instruct the jury. This the learned judge refused to do, saying : “ Unquestionably, if the plaintiff did not give immediate written notice of the accident and injury he cannot recover. This is a condition precedent to any recovery. But we cannot undertake to say to you, as a matter of law, that the written notice mailed on October 1st was not an immediate notice under the circumstances, on a reasonable construction of this provision.”

It is our duty to give the policy in question a fair, businesslike, common-sense interpretation. It is in such sense that the parties to the contract probably understood it. The plaintiff was not claiming for weekly benefits. Had he clone so,., there would have been more force in the defendant’s position that he should have given notice of the accident immediately after its occurrence on September 4th. His claim, however, was: for the loss of his eye, and it is difficult to see how he could with any propriety make such a claim until he had actually lost it, or it had become clear that he would lose it. How could he have truthfully made such a claim on the fifth of September ? And had he done so and his eyesight been restored, the probability is the defendant company would have criticised his claim even more closely than it has done now.

■ In the case of Lyon v. Railway Passenger Assurance Company, 46 Ia. 631, the insured was injured whilst traveling on a railway train. Pie brought suit to recover a weekly allowance. By the terms of the policy he was required to give “ immediate notice to the company at Hartford, Connecticut.” The injury was received on September 27th and notice was sent to the company at Hartford on October 28th following, thirty-one; days afterwards. During this time he was under medical treatment for eight or nine days at one place, when he returned to his home and came under the treatment of other physicians. The court held that under all the circumstances it was not error in the court below to refuse to instruct, as a matter of law, that the notice was not given in proper time. The question was left to be determined by the jury as one of fact.

It is true the delay in such cases may be so great as to justify the court in ruling it as a question of law. There was no such delay in the case in hand, however. The word “immediate,” in the contract, must be construed to mean within a reasonable time thereafter, under all the facts and circumstances of the case, and what is a reasonable time must be decided by the jury, unless, as before observed, the delay has been so great that the court may rule it as a question of law. A person might be so injured as to be physically unable to give notice for weeks. Hence it is that such questions are referred to the jury to say whether under all the circumstances there has been an unreasonable delay in giving notice. In the present case we are not required to go so far as the court did in the Iowa case. I see no reason which requires notice to be given of the loss of an eye, until the eye is destroyed, any more than that in a life policy a man should give notice of his death before he dies.

The third assignment, in reference to the proofs of loss, is not in accordance with the rules of court. I do not find the proofs in the paper book. If admitted for the purpose of showing that such proofs had been made in compliance with the policy, they were competent. If offered and read to the jury as prima facie evidence of the plaintiff’s claim, their admission would have been error: Commonwealth Ins. Co. v. Sennett, 41 Pa. 161; Lycoming Ins. Co. v. Schreffler, 42 Pa. 188. I do not understand this to have been the case. If it was, it has not been sufficiently pointed out to us.

Judgment affirmed.