George v. Aetna Cas. & Sur. Co.
| Decision Date | 01 October 1931 |
| Docket Number | 27734 |
| Citation | 238 N.W. 36,121 Neb. 647 |
| Parties | CHARLES C. GEORGE, APPELLANT, v. AETNA CASUALTY & SURETY COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: FRED A. WRIGHT JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
The word " immediate," in referring to notice required in an insurance policy, means with reasonable celerity, with reasonable and proper diligence, and what is reasonable time depends upon all of the facts and circumstances of each particular case.
A requirement in a public liability insurance policy that notice of an accident shall be given immediately or forthwith or at once will not be literally construed; but it is sufficient if the required notice be given within a reasonable time under the circumstances of each particular case.
Forfeitures are not favored under Nebraska laws and will not be held to have been intended in the absence of language in the policy of insurance clearly indicating the contrary.
The statutes of Nebraska provide that a breach of condition in any policy of insurance shall not avoid liability nor avail the insurer to avoid liability unless such breach shall contribute to the loss. Comp. St. 1929, § 44-322.
The question of whether a notice given some eleven months after the accident occurred is timely or reasonable, when the policy provided for immediate notice, is one that should be submitted to a jury, together with all the facts and circumstances as set out in the record in this case and under proper instructions.
Appeal from District Court, Douglas County; Hastings, Judge.
Action by Charles C. George against the Æ tna Casualty & Surety Company. Judgment for defendant, and plaintiff appeals.
Reversed and remanded.
Gaines, McGilton, McLaughlin & Gaines, for appellant.
Brown, Fitch & West, contra.
A judgment was entered in the lower court in favor of the Aetna Casualty & Surety Company, defendant, in an action brought against it by Charles C. George, plaintiff, upon a public liability policy. The plaintiff appeals.
The facts as disclosed in the record show that August 1, 1925, said plaintiff, George, purchased of defendant a renewal of his combination public liability policy upon his residence property, located at 5218 Chicago street, in Happy Hollow addition to Omaha, paying therefor a premium of $ 103.35. This policy was to protect him from loss or expense arising or resulting from claims for damages on account of personal injuries or death accidentally suffered by any person or persons while within, about, or adjacent to his residence.
About 5:00 p. m. on the evening of January 20, 1926, while this public liability insurance policy was in force, one Anna M. Lindstrom, about 50 years of age, was walking along the sidewalk in front of plaintiff's residence, and claimed that by reason of the snow and ice, which had not been removed from the sidewalk, she slipped, fell and broke her leg. Plaintiff first learned of the accident several weeks after it occurred, when a sister of the woman called at his office and said that she had received an injury, but he does not recall that she said it was a broken leg, and wanted to know if he would be willing to help her pay some of the doctor's expenses, but plaintiff does not recall that any reference to a hospital was made at that time. Plaintiff knew Anna M. Lindstrom, as she had served as a waitress at his home on different occasions several years before that time; that when he learned of her injuries he did not know and had no reason to believe or suppose that he was in any way responsible or liable therefor; that immediately thereafter plaintiff left Omaha on a trip and was gone for several weeks; that he heard nothing more of the matter for months, but in November or December, 1926, an attorney named Palmer called on him and claimed he was liable for the accident. The plaintiff immediately notified the agent of the defendant insurance company.
Anna M. Lindstrom filed her petition for $ 25,000 damages against the plaintiff herein upon December 21, 1926, and service of summons was had on the plaintiff on December 23, 1926. The plaintiff herein gave a written report of the accident to the insurance company on December 29, 1926, on a form furnished him by the agent of the insurance company. Thereupon a representative came to Mr. George's office and asked him to write out a statement for the company, which he did, and it was received in evidence as exhibit 5, and reads as follows:
The insurance company refused to defend the suit and denied liability to plaintiff under its policy on the ground that plaintiff had failed to give them notice of the accident within a reasonable time after its occurrence, as required by the terms of his policy, a provision therein reading as follows:
The plaintiff was thereupon compelled to employ attorneys to defend him in the suit filed against him. They prepared the answer in the case, and in that connection testified that there was a considerable amount of briefing done and investigation of the law, because there were a number of legal propositions that they had to go into before being in a position to prepare the defense of the case. They first made an investigation as to whether or not there was involved a violation of any city ordinance. They decided there was no city ordinance requiring a property owner to remove ice from his sidewalk. Then they investigated as to whether it was private property or a public highway, and as to the elevation of the property, whether or not there was a terrace there and a natural flow of water from melting snow, how the water had lodged, etc. Shortly before the time of trial Mr. George's attorneys investigated the records of the rainfall and the temperatures and everything in connection with the condition of things at the time of this accident. They interviewed a number of witnesses, some of them having been interviewed several times. The actual trial of the case took about two days, and the total accumulation of time spent in getting ready for trial would be over two weeks of the time of both Attorney F. H. Gaines and his son, F. S. Gaines. They made two arguments to the jury and won the case for the plaintiff. There was a motion for a new trial filed, which was argued and won.
The plaintiff filed this suit against defendant insurance company upon October 13, 1928, setting out the facts and praying for a judgment for his attorneys' fees in the sum of $ 1,500 and expenses of $ 45.50, making a total of $ 1,545.50 which he had been compelled to expend to defeat the damage case brought against him, together with 7 per cent. interest from May 28, 1927, and costs and attorneys' fees.
The answer alleged that the plaintiff had knowledge of the accident of Anna M. Lindstrom shortly after the accident occurred, and that plaintiff knew shortly after the accident that said Anna M. Lindstrom had suffered a serious injury and that plaintiff knew that in all likelihood a claim would be made upon him because of said accident and injury and, notwithstanding the conditions and provisions of said policy requiring plaintiff to give immediate notice with the fullest information obtainable to the defendant company, or its duly authorized agents, of any accidental occurrence, plaintiff in breach of said condition and contract failed and omitted to give defendant any notice thereof until December 26, 1926, and plaintiff, by his...
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