Cochran v. Massachusetts Bonding & Ins. Co., 10809.

• Citation: 230 P. 788,76 Colo. 198
• Decision Date: 10 November 1924
• Docket Number: 10809.
• Parties: COCHRAN v. MASSACHUSETTS BONDING & INS. CO.
• Court: Supreme Court of Colorado

230 P. 788

76 Colo. 198

COCHRAN v. MASSACHUSETTS BONDING & INS. CO.

No. 10809.

Supreme Court of Colorado

November 10, 1924

Department 3.

Error to District Court, Phillips County; H. E. Munson, Judge.

Action by James D. Cochran against the Massachusetts Bonding &amp Insurance Company. Judgment of nonsuit, and plaintiff brings error.

Affirmed.

Allen Webster & Drath and Ivor O. Wingren, all of Denver, for plaintiff in error.

Lee Loughridge & Healy, of Denver, for defendant in error.

ALLEN J.

This is an action upon a policy of accident insurance. To review a judgment of nonsuit, the plaintiff below has brought the cause here for review.

The policy contained the following clauses:

'4. Written notice of injury * * * on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury. * * *

'5. * * * 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 the notice, and that notice was given as soon as reasonably possible.'

The plaintiff was injured on March 1, 1921. It was not until March 28, 1921, that a written notice of the injury was received by the company or its general agent. This was more than 20 days after the accident.

At the close of plaintiff's evidence the defendant company moved for a nonsuit with prejudice on the ground that the provisions of the policy with reference to notice of injury had not been complied with by plaintiff. The motion was sustained. This ruling is assigned as error.

The written notice not having been given within 20 days after the date of the accident, the question presented by the record is whether, as a matter of law, there is sufficient evidence that it was not reasonably possible to give the notice within that time and that it was given as soon as reasonably possible, to have the question submitted to the jury.

The policy requires that the notice contain 'particulars sufficient to identify the insured.' This does not necessitate the use of any blanks. The plaintiff was physically and mentally able to send such a written notice promptly. He chose, however, to send for blanks corresponding, not with the general agent of the defendant company, but with the agent employing the local soliciting agent. He failed to receive the blanks promptly because in his first letter he did not...