Mewborn v. Employers' Liability Assur. Corporation

• Decision Date: 30 December 1929
• Docket Number: 210.
• Citation: 150 S.E. 887,198 N.C. 156
• Parties: MEWBORN v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, et al.
• Court: North Carolina Supreme Court

150 S.E. 887

198 N.C. 156

MEWBORN v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, et al.

No. 210.

Supreme Court of North Carolina

December 30, 1929

Appeal from Superior Court, Lenoir County; Nunn, Judge.

Action by J. Hyman Mewborn against the Employers' Liability Assurance Corporation, Limited, and another. From a judgment for plaintiff, defendants appeal. No error.

Expression "immediate written notice" of accident in automobile policy requires reasonable diligence in giving notice under circumstances.

Civil action to recover on a personal injury and property damage contract of insurance.

By the terms of the policy in suit, the defendant agreed to indemnify the plaintiff, owner of the 1923 model Ford roadster covered by the contract of insurance, against (1) loss from legal liability for damages on account of bodily injuries, including death resulting therefrom, accidentally sustained by any person, to the extent of $5,000 for one person, and $10,000 for more than one, and (2) loss from legal liability for damages on account of the accidental injury to or destruction of property covered by the policy including the resultant loss of use of such property subject, among other things, to the following stipulation:

"Notice. Condition C. Upon the occurrence of an accident covered by this Policy, the Assured shall give immediate written notice thereof to the Corporation or its duly authorized Agent. The Assured shall give like notice with full particulars of any claim made on account of any such accident. If any suit or other proceeding mentioned in Agreement III is instituted against the Assured on account of any such accident, the Assured shall immediately forward to the Corporation or its duly authorized Agent every notice, summons, or other process served upon the Assured."

The policy of insurance was in force on June 28, 1925, when plaintiff's car, operated by his adopted son and in which his nephew, N. Palmer Mewborn, Jr., was riding, collided with another car on the Kinston-Snow Hill highway, resulting in serious bodily injury to plaintiff's said nephew, from which he died August 8, 1925.

Written notice of the accident was given to the defendant on September 12 following. Defendant denied liability because of plaintiff's delay in giving notice.

Thereafter at the November term, 1927, Lenoir superior court, the administratrix of N. Palmer Mewborn, Jr., deceased, in an action for wrongful death, recovered a judgment against the plaintiff in the sum of $10,000. The defendant had due notice of this suit which was instituted June 26, 1926, but declined to defend it, or take any part in its defense, preferring to rely upon its alleged nonliability under the policy because of plaintiff's failure to give immediate notice of the injury.

In excuse of the delay, plaintiff offered the testimony of his physician, partner, and others, tending to show that he was so shocked and overcome by the act of his son-in-law, which caused his nephew to linger in a desperate condition from June 28 till his death on August 8, as to affect his mental processes and rendered him incapable of "originating an idea or discovering an old one" and unfit to attend to business matters up to the time notice was given to the defendant by plaintiff's wife on September 12, 1925. He was "much depressed and mentally affected, very much so. There was a very decided change in the man all during that time and for a good while afterwards."

Dr. J. M. Parrott testified, in substance, as follows: Mr. Mewborn is a man of unusually fine sensibility and high sense of honor. He was profoundly impressed, and during that time was not competent to originate an idea without outside suggestion, though he was entirely competent to transact his business if matters were called to his attention. I do not believe that he would have thought about a financial matter of this character under the circumstances. If his farming operations and other business were called to his attention, he could no doubt have attended to them, and did, but I do not think he was in a condition to originate an idea, or to discover an old one. "I think he is of that unusual high type that he rather disregards money and under those distressing circumstances I don't believe he would be liable to think about the money side or remuneration that he might obtain. I think this attitude principally came from his grief or the effects of grieving over the accident plus the natural tendency of Mr. Mewborn. To be frank, Mr. Mewborn is a very unusual man. He is not the type that thinks much of the money side. He lives in a rather high thought. That type of mind is not liable to think about money and material matters under these circumstances."

Plaintiff's partner testified: "He was very much grieved all the time and sometime after Palmer Mewborn's death, he did not seem to have his mind on his business at the store or farm. I looked after the store, but he did not seem to have his mind on the farm, but all on this boy."

The defendant, in reply, offered evidence tending to show that the plaintiff "went about his usual duties except he appeared to be sometimes thinking of things and was grieved over the accident."

Mrs. Mewborn testified: "I certainly did not consider my husband crazy at that time, nor do I now."

Upon denial of liability and issues joined, there was a verdict and judgment for the plaintiff, from which the defendant appeals, assigning errors.

C. H. Gover, of Charlotte, for appellants.

Dawson & Jones, of Kinston, for appellees.

STACY, C.J. (after stating the case).

The accident occurred June 28, 1925; the extent of the injury was not known until August 8, following; written notice was given to the defendant September 12 thereafter. Was this a sufficient compliance with "Condition C" of the...