Gifford v. New Amsterdam Cas. Co., 41592.

• Decision Date: 02 May 1933
• Docket Number: No. 41592.,41592.
• Citation: 248 N.W. 235,216 Iowa 23
• Parties: GIFFORD v. NEW AMSTERDAM CASUALTY CO.
• Court: Iowa Supreme Court

216 Iowa 23

248 N.W. 235

GIFFORD

v.NEW AMSTERDAM CASUALTY CO.

No. 41592.

Supreme Court of Iowa.

May 2, 1933.

Appeal from District Court, Polk County; Frank S. Shankland, Judge.

Action to recover on policy of public liability insurance on automobile. From judgment in favor of plaintiff, defendant appeals. The opinion states the facts.

Affirmed.

James E. Goodwin, of Des Moines, for appellant.

Rippey & Seeburger, of Des Moines, for appellee.

CLAUSSEN, Justice.

In June of 1927, appellee was the owner of an automobile. He then procured two liability and property damage policies on said car, one from appellant and another from the Federal Insurance Company. In April, 1928, he became involved in an accident, while driving such car, as a result of which several persons were injured under circumstances creating liability upon him. He found the policy in the Federal Company, and gave notice of the accident, to that company. The policy with appellant was not with the other policy and some thirty or more insurance policies held by appellee covering various properties and things. Appellee was under the impression that he had two policies upon the car. He and his secretary searched in his office and he and his wife searched in his home for the missing policy, but it was not found. He did not remember who had written the policy nor the name of the company in which it was written. On September 21, 1928, while looking through a “bill book” in his desk, at his home, he found an identification card issued by appellant, which recalled to his mind the fact that the missing policy had been written by appellant. Thereupon, and on said 21st day of September, 1928, he gave notice of the accident to appellant.

In the meantime appellee had been sued by the injured parties. Appellant disclaimed liability under its policy on account of delay in the service of the notice of accident. These suits were settled and the action at bar is to recover the costs to appellee of such settlements. A verdict was directed for appellee and from judgment thereon, this appeal is prosecuted.

The policy contained this language: “Condition B: The assured shall give, as soon as practicable, written notice of the accident. * * *”

Counsel for both sides in their arguments agree that the only question raised by the appeal is whether notice of the accident was given “as soon as practicable.”

[1] It is perhaps impossible to resolve the words “as soon as practicable” into more simple terms, but if it is necessary to translate them into language having an established legal significance, they undoubtedly mean within a reasonable length of time under all the facts and circumstances. As used in the policy under consideration, these words mean the same as “immediately” or “as soon as possible” and many other like expressions, all of which have been construed by the courts of this and other states to mean within a reasonable time.

[2] The words readily lend themselves to this construction, for whether a thing is “practicable” depends upon the actualities, the very facts and circumstances of the case. Facts persist. A thing is not “practicable” if some element essential to its accomplishment is lacking. Notice cannot be served when the party to be served is unknown, and consequently the service of such notice is not practicable until the identity of the party to be served is known. A party to a contract of insurance containing words of this character should not be permitted to put himself in a position where he cannot comply with its provisions as to notice, by intentionally or negligently mislaying the policy, and still be permitted to recover. In that situation notice served, upon a subsequent discovery of the policy, could scarcely be said to be served within a reasonable length of time, under all the facts and circumstances, even though it might actually be served as soon as practicable under the facts and circumstances existing at the time of the accident alone. We reach the conclusion that compliance with the condition of the policy, quoted, required that notice of the accident be given within a reasonable time, under all the facts and circumstances.

That notice was given as soon as practicable under the facts and circumstances existing at the time of the accident is not open to doubt. It then becomes a question whether it was given within a reasonable length of time, under all the facts and circumstances.

[3][4] Negligence is never presumed. Orr v. Des Moines Electric Light Co., 207 Iowa, 1149, 222 N. W. 560. The record discloses nothing tending to show negligence on the part of appellee in losing or mislaying the policy, except the circumstance that it was not found. (It is neither suggested nor decided that...