American Nat. Ins. Co. v. Waters

• Decision Date: 25 June 1923
• Docket Number: 23455
• Citation: 133 Miss. 28,96 So. 739
• Court: Mississippi Supreme Court
• Parties: AMERICAN NAT. INS. CO. v. WATERS

96 So. 739

133 Miss. 28

AMERICAN NAT. INS. CO. v. WATERS

No. 23455

Supreme Court of Mississippi

June 25, 1923

Division A

(Division A.) January 1, 1920

INSURANCE. Failure to give notice of injury within time specified does not forfeit rights, when not so provided.

Though accident policy requires written notice of injury within twenty days after the accident, where it does not expressly or impliedly provide for forfeiture for failure to give notice within that time, and notice is given within a reasonable time, no forfeiture results.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by Dr. C. S. Waters against the American National Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

B. F Carter, for appellant.

The solemn contract entered into by the parties to this suit provided that "written notice of injury or of sickness on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from such sickness. In event of accidental death, immediate notice thereof must be given to the company." The policy with all its provisions, conditions, and requirements, was offered to and accepted by the appellee herein, and he fully understood same, and we further most earnestly submit that the giving of this notice of accident within twenty days from the date of the said alleged accident, just as required by clause four of the standard provisions of said policy contract, was a condition precedent to his right of recovery under said policy. There must have been some logical reason for the repealing of section 2575 of the Mississippi Code of 1906. As construing this statute we cite the case of Assurance Company v. Walker, 99 Miss. 404, which holds that the provisions of the Mississippi Code of 1906, section 2575, extend to a notice of accident required to be given under a policy, and hold that the requirement of the policy to give such notice within ten days after the accident was void because in conflict with said section 2575 of said Code, but this section has been repealed and entirely abrogated.

The burden of proof was upon the plaintiff to show that the proof of loss required by the policy had been forwarded to the insurer. 1 Cyc. 297, Q-4; 1 Cyc. 471, XVI; 1 C. J. 485, D-2. The appellee upon the trial of this cause cited and relied with confidence upon National Union Fire Insurance Company v. Cone, 85 So. 913, and also upon the case of Fisher v. Globe and Rutgers Fire Insurance Company, 86 So. 417, but we contend that neither of these cases are in point.

We earnestly contend that defendants motion for a peremptory instruction should have been sustained. McPike v. Western Assurance Co., 61 Miss. 37. As to the notice of accident being a condition precedent to the right of the assured to recover, see Planters Insurance Co. v. Comfort, 50 Miss. 662.

We submit that in the case at bar, no notice of any kind was given, not even a letter written until June 3, 1922, and received by the company June 7, 1922. We would call the attention of this honorable court to the following named cases as holding that the failure to comply with the terms and requirements of the policy, as to giving notice of accident, within the period of time specified in the policy, defeats a recovery on the policy. Johnson v. Maryland Casualty Co., 73 N.H. 259, 60 A. 1009; Quinlan v. Providence Washington Ins. Co. 133 N.Y. 356, 31 N.E. 31; Weidert v. State Ins. Co., 19 Ore. 261, 24 P. 242; Davis v. Northwestern Mutual Fire Association, 48 Wash. 50, 92 P. 881, 15 Ann. Cases, 333 and note. And holding that this rule is applied indiscriminately to accident and liability policies: Hatch v. Casualty Co., 197 Mass. 101, 83 N.E. 398; 14 Ann. Cas. 290, and note, 14 L. R. A. (N. S.) 503; Note; Ann. Cas. 1914 D, 412; Notes: 38 L. R. A. (N. S.) 62 et seq; 11 Ann. Cas. 258; Ann. Cas. 1914 A, 271, 272; 3 British Ruling Cases, p. 723.

F. B. Collins, for appellee.

It is our contention that unless the said clause in the said policy above referred to, had expressly or specifically stipulated that a failure to furnish such notice within the time specified, would work a forfeiture of the right of the insured to claim the benefits named in said policy or was a condition precedent to the right of the insured to recover under said policy, that a failure to furnish the said notice strictly within the time specified would not work a forfeiture of the right of the insured to recover for injuries received while the policy was in force, provided such notice was furnished within a reasonable time. The courts have universally held that such clauses in insurance policies must be construed most strongly against the insurer. Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 52 L. R. A. 70.

The courts have almost as universally held that a clause in an insurance policy limiting the time in which the insured must give notice of loss or injury for which indemnity is provided in the policy, that a failure to give such notice within the time specified does not work a forfeiture of the rights of the insured to claim under the policy unless such clause expressly states that the giving of such notice within the time specified is a condition precedent to the right of the insured to recover for loss or injury or that a failure to furnish such notice within the time limit will work a forfeiture of the right of the insured to claim the benefits provided in such policy. Southern Fire Insurance Company v. Knight, supra, and cases cited; Mr Joyce on Insurance, Vol. 4, sec. 3282, to which we add the following cases...