Employers' Liability v. Roehm.
| Decision Date | 02 April 1919 |
| Docket Number | 16123 |
| Citation | 99 Ohio St. 343,124 N.E. 223 |
| Parties | The Employers Liability Assurance Corp. v. Roehm |
| Court | Ohio Supreme Court |
Insurance - Indemnity - Construction of policy - Notice to insurer - Time of essence of contract, when - Trivial injury subsequently proves serious - Whether notice given within time - Question for jury - Accident insurance - Loss of eyesight develops after slight injury.
A provision in a policy of indemnity insurance, to the effect that written notice should be given the company within 30 days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualification, that if at the time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that the injury was anything but trivial in its character, not justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued, and that immediately upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but is a question for the determination of a jury. (The last clause of the fourth proposition of the syllabus in the case of The Travelers' Insurance Co. v. Myers & Co., 62 Ohio St. 529 is disapproved.)
The facts are stated in the opinion.
Messrs McMahon & McMahon, for plaintiff in error. Messrs. Breene Dwyer & Finn, for defendant in error.
The defendant in error, John Roehm, while engaged in a game of basket ball, on.day of June, 1914, in the city of Dayton Ohio, was accidentally struck a hard blow in the left eye. Although immediately seeking medical treatment, neither he nor his physician apprehended any serious injury from the blow. For about ten months thereafter he attended to his ordinary business, wholly without appreciation that his sight was other than normal. Consulting another physician in April 1915, he learned for the first time that as a direct result of such accidental blow he had lost the greater part Of the vision of the injured eye. He thereupon submitted to treatment, in endeavor to save his sight; all, however, without relief, the final outcome of the affair being the entire loss of the sight of both eyes. Immediately after becoming aware of the fact that serious injury had been occasioned by the blow, due notice was given the insurance company.
At the time the defendant in error met with the accident he was the holder of a policy in The Employers' Liability Assurance Corporation, Ltd., which insured him "against bodily injuries during the term of the policy." This policy contained the following provision on the subject of notice: "No claim shall be valid on account of any injuries, fatal or otherwise, unless written notice is given to the company within thirty days from the date of sustaining any injuries, fatal or otherwise (unless such notice may be shown not to have been reasonably possible), for which claim is to be made." In August, 1917, within a month of the time that full knowledge was available as to the ultimate extent of the injury, action was entered in the common pleas court Of Montgomery county to recover on the policy.
The insurance company demurred to the petition, its position being that since the petition showed that notice was not given of the happening Of the accident, within the time stipulated by the policy, namely thirty days, the plaintiff was without remedy.
From the time the blow on the eye was received until the serving of the notice, a period of quite ten months elapsed, so unless circumstances are disclosed constituting a legal excuse for failure to serve notice sooner, and within the period of thirty-days, the demurrer to the petition was properly sustained by the court of common Pleas of Montgomery county.
The only excuse recognized by the company for failure to serve notice is that the service of such notice was not reasonably possible. It is claimed by the company that this excusing clause has no relation to the injury itself, or its nature and extent, but relates wholly to some condition that the insured might have found himself in at the time - for instance, continued delirium, or some state of mind that would have rendered him practically unaccountable in law for his conduct. It refuses to recognize that any uncertainty as to the extent of the injury, or even the belief on the part of the insured that the injury was so insignificant that he did not want to dignify it by presenting a claim therefor, constitutes any excuse under this clause for failure to give notice.
The position of the defendant in error is that his conduct was...
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