NOTICE UNDER A LIABILITY POLICY OF THE OCCURRENCE OF AN ACCIDENT.

Court of Appeals for Hamilton County.

#### The Fischer Auto & Service Company v. General Accident Fire and Life Assurance Corporation, Ltd. of Perth, Scotland.

Decided, June 9, 1917.

*Indemnity Insurance*— Covering *a Motor .Vehicle*— What *Constitutes Immediate Notice to the Company*— Where *Bodily Injuries do Not Develop for Sometime After the Accident.*

1. In an insurance policy covering tire operation of a motor vehicle, wherein liability is limited to bodily injuries, a provision that “the assured upon the occurrence of an accident shall give im*301mediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office in New York City or to its duly authorized agent,” does not require the giving of notice to the insurance company of an accident in which the machine covered by the policy was involved but which did not result in bodily injuries; and in an action upon such a policy the use of language in the charge of the court from which the jury might infer that notice to the company was necessary under the 'policy on the occurrence of any accident whatever, regardless of its resulting in bodily injuries, constitutes prejudicial error.

2. In an action on such a policy, where it did not appear at the time but developed later that bodily injuries were sustained, it is error to refuse to instruct the jury that the giving of written notice of the occurrence of said accident, within a reasonable time after it became known to the assured or his chauffeur that bodily injuries had been sustained, is a sufficient compliance with the stipulation that such notice must be “immediate.”

*Betting er, Schmitt (& Kreis,*for plaintiff in error.

*Clore <& Clayton, Nelson Schtuab*and *John M. McCaslAn,*contra.

Jones, P. J.

The parties here stand in the same position in which they stood in the trial court, and for convenience they will be referred to as plaintiff and defendant, the verdict and judgment having been given in favor of the defendant.

The action below was brought upon a policy of insurance by which the defendant agreed to indemnify plaintiff as the assured,

> “Against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered while this policy is in force by any person or persons by reason of the ownership, maintenance or use,”

etc., of plaintiff’s automobile which was described in the policy.

Suit was brought by Daniel W. Smith for injuries received by him in the collision between plaintiff’s said automobile and the one in which Smith was riding. Defendant refused, upon notice, to defend plaintiff in the suit brought by Smith, and denied liability thereunder on the ground that notice had not *302been given of the occurrence of the accident in accordance with the terms of the policy.

This action below was brought to recover from defendant the amount of the judgment and expenses in said suit brought by Smith. The insurance policy contained the following condition :

> “0. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof. If thereafter any suit is brought against the assured to enforce such a claim the assured shall immediately forward to the corporation every summons or other process served on him.”

Defendant denied liability and refused to defend the action brought by Smith, on the ground that plaintiff had wholly failed to comply with • said conditions, in that no notice was given as provided in said condition until January 14, 1914, although the accident took place on July 18, 1913.

The record shows that plaintiff’s truck was being operated by a driver who had no knowledge of any bodily injury to either of the occupants of the other automobile, and understood that the extent of the damages caused by the collision was the property damage to the other automobile consisting of a broken lamp and windshield, and the driver made such a report. The first knowledge had 'by plaintiff of any bodily injury caused by the accident was brought to it by a letter from Smith’s attorney dated December 3, 1913, on receipt of which Mr. Fischer called upon the attorney, and went from his office to the office of the Heister & Huntington Company, the agent for the insurance company, and reported same, and secured from said agent a blank form on which a report was then made to the insurance company.

On December 6, 1913, the attorneys of defendant advised plaintiff of the receipt of this report and stated:

> “* $ * This n0£ jn eonipiiance with the policy of insurance, which required an immediate report upon any accident that may happen, and for this reason we hereby notify *303you that the General Accident F. & L. Assurance Corporation, Ltd., denies liability for this accident, and declines to make any investigation of the alleged accident, or to defend you in the event an action is brought against you growing out of the injuries to Mr. Smith.”

Upon suit being filed by Mr. Smith summons was sent to the agents of the insurance company in compliance with the terms of the policy.

The real question in this case is whether the assured must, under clause C above quoted, give notice of every “accident” that may occur in the use of the automobile insured, or only of such accidents as occasion bodily injuries.

The policy of insurance has nothing to do with injuries to property, but is only concerned with bodily injuries to the person. In this case it appears that Mr. Smith at the time of the occurrence immediately left the scene of the accident without in any way having communicated to plaintiff’s driver the fact that he had been injured, and it was not apparent to such driver that any bodiiy injury had been inflicted. It appears that Smith’s injury did not develop to be anything but a trifle .until some time after the collision, when it was discovered that a piece of glass from the broken lamp or wind-shield had worked its way into his knee and afterwards occasioned a serious injury.

In the opinion of the court this ease is ruled by- the principles laid down in *Chapin*v. *Ocean Accident & Guarantee Corporation,*96 Neb., 213, the third syllabus of which is as follows:

> “In a case where no bodily injury is apparent at the time of the accidental occurrence, and there is no reasonable ground for believing that a claim for damages against the owner of the automobile may arise therefrom, he is not required to give the assurer notice until the subsequent facts as to injury would suggest to a person of ordinary and reasonable prudence that a liability to the injured person might arise. In such case the *¡¡^*duty of the assured is performed if he gives notice within a rea- ' ^sonable time after the injury presents an aspect suggestive of a possible claim for damages.”

To the same effect are: *Lucas*v. *Amsterdam Casualty Co.,**304162 N. Y. Supp., 191; *Schambelan*v. *Pref. Acc’d Ins. Co.,*62 Pa. Superior Court, 445.

It could well be claimed that if plaintiff’s driver had known of even a slight injury to Smith, the stipulation of the policy would require notice of such injury even though plaintiff might deem it unnecessary. Such is the rule laid down in *Travelers Ins. Co.*v. *Meyers,*62 O. S., 529.

No doubt it is proper to submit to the jury the questions of fact whether the circumstances of the accident were such as would have made it apparent to the plaintiff that bodily injuries might result from the accident, and whether the terms of the policy as to notice had been complied with. *Crane*v. *Standard Ins. Co.,*4 N. P., 309 (affd. 59 O. S., 617). In this view of the law the trial court erred in refusing to give the two following special charges requested by plaintiff before argument to the jury:

> “The provision in the policy sued upon, that the assured upon the occurrence of an accident shall give immediate written notice, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent, does not require a notice of all- accidents, but only such accidents as result in bodily injuries.

> “If you find that neither the plaintiff nor the driver of its truck prior to the receipt of the letter from Carl Rankin, on December 4, 1913, knew or had reasonable grounds to believe that Mr. 'Smith received a bodily injury in the collision on July 18, 1913, and that within a reasonable time thereafter communicated said written notice to the ITeister Huntington Company, then I charge you that the giving of that notice was a compliance with the provision of the policy requiring the insured to give immediate written notice of the accident.”

And the court erred in its general charge in the use of language from which the jury might infer that a notice was necessary to be given the defendant company under the policy on the occurrence of any accident whatever, even though bodily injury did not result therefrom.

The judgment is therefore reversed and the cause remanded for further proceedings.

Gorman, J., and Hamilton, J., concur.