Southern Sur. Co. of New York v. Heyburn

• Decision Date: 10 June 1930
• Citation: 29 S.W.2d 6,234 Ky. 739
• Parties: SOUTHERN SURETY CO. OF NEW YORK v. HEYBURN.
• Court: Kentucky Court of Appeals

29 S.W.2d 6

234 Ky. 739

SOUTHERN SURETY CO. OF NEW YORK v. HEYBURN.

Court of Appeals of Kentucky

June 10, 1930

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by William Heyburn against the Southern Surety Company of New York. Judgment for plaintiff, and defendant appeals.

Reversed for new trial.

DIETZMAN J., and THOMAS, C.J., dissenting in part.

W. W Downing and Wm. F. Clarke, Jr., both of Louisville, for appellant.

Peter Lee, Tabb, Krieger & Heyburn, of Louisville, for appellee.

STANLEY C.

The appellant, Southern Surety Company of New York, issued its policy of insurance to the appellee, William Heyburn, by which it undertook to indemnify him against loss by reason of legal liability for damages on account of bodily injuries accidentally sustained by any person, subject to the conditions and limitations stated in the policy. One of the conditions was the following:

"Whenever the Assured or Bailees shall have knowledge or receive information of any occurrence which might result in a claim against the Assured or Bailees for damages on account of bodily injury sustained or for any other cause, and for which claim they might expect indemnity under this policy, then the Assured or Bailees shall give immediate written notice to the Company or its duly authorized Agent. *** It is understood and agreed that between the Company and the Assured and/or any person claiming indemnity under this policy, that a literal and strict compliance with the requirements of this Condition 'D' is the essence of the contract and a condition precedent to recovery under this policy." In May, 1926, the insured's automobile, driven by his chauffeur, struck Miss Nell McBride at a crossing in Louisville, knocking her ten or fifteen feet to the street. Her clothing was soiled and perhaps torn. Mr. Heyburn offered to take her to the hospital or to her home and to call a physician. She at first accepted his offer to take her home, but says as she was about to enter his automobile she remembered that her sister, who had been sick, would likely see her being assisted and brought home, and in fear that it would shock and alarm her, she suggested that she would go across the street to a grocery as she knew the people there. Mr. Heyburn assisted or accompanied her to the store, but she assured him she was not hurt and declined to give her name on that account. She did not request Mr. Heyburn's name and it does not appear that he gave it to her. The young lady, after Mr. Heyburn's departure, felt the effects of a nervous shock, but was able to walk to her home a square away without assistance. It developed that she had sustained injuries which incapacitated her for several months.

In the following August Miss McBride learned that it was Mr. Heyburn's car which had struck her, and he was advised of the development of her injuries. He very promptly notified the insurance company of the fact of the accident and the assertion of a claim against him. Later, when a suit was filed against him for damages, he sent the summons to the company in accordance with the terms of the policy. The insurance company declined to recognize its responsibility on the ground that the insured had not complied with the terms of the policy above quoted. Thereupon Mr. Heyburn employed counsel to defend the suit and later compromised it by paying Miss McBride $900 and the court costs. He then instituted this suit against the company to recover what he had paid, plus attorneys' fee, an aggregate of $1,183. The company rested its defense upon the breach of the foregoing condition in the policy.

A verdict was returned in favor of the company, but it was set aside by the trial court, and on the next trial a jury found for the plaintiff. The company prosecutes an appeal from the judgment, and also brings up the record of the first trial. It is insisting that on both trials it was entitled to a peremptory instruction; if not, that the court erred in setting aside the first verdict, and also erred on the last trial in instructing the jury.

The decision of the case must rest upon the construction and application to be given the quoted condition of the policy, in two respects, that is; (1) as to "any occurrence which might result in a claim"; and (2) as to "immediate written notice."

There is no difficulty encountered in construing the term "immediate notice." It is an essential and controlling provision in policies of this character; but quite obviously it is not an arbitrary term to be given the sense of instantaneous. All authorities agree that it is intended to be and is to be construed as notice within a reasonable time, dependent upon the facts and exigencies of each particular occasion. When the facts are not in dispute it becomes a matter of law as to what that reasonable time is. Jefferson Realty Co. v. Employers' Liability Corporation, 149 Ky. 741, 149 S.W. 1011; 14 R. C. L. 1329. There may appear circumstances which would excuse sooner notice; but it is not nor could it be seriously contended that the lapse of three months in this case is a reasonable time, (National Concrete Construction Co. v. Travelers' Ins. Co., 176 Mass. 121, 57 N.E. 350), unless the computation is to begin when the insured definitely learned that the pedestrian had been injured and a claim was being asserted against him--a construction of this term that was denied in Aronson v. Frankfort Acc. & Plate Glass Ins. Co., 9 Cal. App. 473, 99 P. 537.

The reported cases of this character, which we have noted (excepting only the Aronson Case), construed conditions in policies which required the insured to give notice of "any accident" or "occurrence of an accident covered by the policy." No exception as to any kind of accident was made nor the possibility of a claim regarded. As to these conditions, the general rule has been established that the insured is not required to report trivial accidents which result in latent injuries or petty wounds, and there was no reasonable ground to believe at the time that an injury had been received.

But the term we are dealing with is different. It is, "any occurrence which might result in a claim" being asserted. Every accident is an occurrence. But not every occurrence is, strictly speaking, an accident. It should, however, in this connection be construed as synonymous with an accident or kindred act--an unforeseen occurrence resulting in bodily injury to a person other than the one indemnified which may give rise to a claim against the insured. However, the contract of insurance is silent as to who shall be the judge of whether the occurrence or accident was such as "might result in a claim."

It is to be readily admitted that in cases resting upon policies of indemnity of this character the interpretation should be more rigid or exact and the rule should be more strictly enforced than in cases resting upon fire insurance policies or ordinary accident policies covering disability or injury of the person insured. In the latter cases the liability becomes fixed immediately upon the occurrence, while in this class the very nature of the indemnity requires prompt investigation and preparation for a defense to the possible litigation by the one who shall or might be, through his contract, forced to become the real defendant, for with passing time the discovery of witnesses becomes more difficult, physical conditions change, memory becomes less sure, facts become distorted, and "more dangerous than all, fraud and cupidity have had opportunity to perfect their work."

Undisputed facts may appear where the court should as a matter of law hold that the occurrence was so trivial the insured was not required to report it to the company, even though apparently casual or latent injuries subsequently developed to be serious ones. On the other extreme, there may be accidents of such magnitude, or injuries of such degree, apparent or disclosed at the...