CONSTRUCTION OF NOTICE CLAUSE IN ACCIDENT INSURANCE POLICY.

Court of Appeals for Montgomery County.

#### John Roehm v. American Casualty Company. John Roehm v. Employers Liability Assurance Corporation.*

Decided, August 6, 1918.

*Accident Insurance*— Provisions *with Reference to Early Notice of Injury Liberally Interpreted in Case of Latent Injuries*— Loss *of Eye Sight which did not Develop for Ten Months.*

1. Under a policy of accident insurance which provides that no claim shall be valid “unless written notice is given * * * within thirty days from the date of sustaining injuries, fatal or otherwise (unless such notice shall be shown not to have been reasonably possible),” is open to the construction that a policy holder will not be required to give notice within thirty days after an accident, if no serious injury was indicated at the time of its occurrence; and where, the injury was to the eye sight, which did not become apparent until ten months later, liability attaches if notice was given as soon as the injury developed.

2. Under a policy which provides that notice shall be given at the home office of the company within ten days from the date of the accident, but which contains the further provision that the full amount of the policy shall become payable in ease of irrecoverable loss of the entire sight within two hundred weeks, a policy holder sustaining an injury to his eye sight, which did not appear immediately but existed in a latent condition for a considerable period, will be held to be protected.

*Breene, Dwyer & Finn,*Attorneys for Plaintiff in Error.

*McMahon & McMahon,*Attorneys for Employers Liability Company.

*W. 8. Rhotehamel,*Attorney for American Casualty Company.

*

 Affirmed by the Supreme Court April 2, 1919.

Ferneding, J.

Both of these cases were brought upon policies of insurance covering accidental injuries.

*487The petitioners state that plaintiff on or about the —-day of June, 1914, while participating in a game of basket ball was accidentally struck a hard blow in the left eye and that- at the time no serious consequences were indicated from the injury.

He consulted a physician at the time, who, after examination, did not consider the injury -of a serious nature.

Sometime later, however, he consulted another physician and then learned that as a result of such accidental blow he had lost the greater portion of the sight of said eye. He thereupon immediately notified the company. The sight of this eye gradually diminished and finally failed entirely; it is further averred that as a result of said accidental injury the entire sight of both eyes was irrevocably lost.

The plaintiff avers in said petition that he was entirely without knowledge that said accidental blow had seriously injured his eyes until about the -- day of April, 1915, and that immediately upon receiving such notice, to-wit, April 15, 1915, he duly notified the insurance company.

The court of common pleas sustained demurrers to both petitions and the cases were brought here upon petitions in error.

The controlling question in both cases is as to the failure of the insured to give notice of the accident or injury, within the specified time mentioned in the policy after the accident.

The language of the stipulation in each of the policies as to notice being somewhat different the eases will be discussed separately.

The Employers’ Liability Insurance Corporation Case.

In this case the “notice” clause is as follows:

> “No claim shall be valid on account of any injuries, fatal or otherwise, unless written notice is given to the corporation’s manager for the United States at Boston, Massachusetts, or to the agent of the corporation whose name is endorsed hereon, within thirty days from the date of sustaining any injuries, fatal or otherwise, (unless such notice may be shown 'not to have been reasonably possible), for which claim is to be made, with full particulars thereof and full name and address of the assured or beneficiary, as the case may be. ”

*488It will be observed that in. this ease there is no absolute requirement that the notice be given within thirty days after the accident.

This policy was evidently intended to provide against a harsh or strict construction of this clause and to allow a liberal construction in favor of the policy-holder in eases where “notice” within a limited period was not “reasonably possible.”

Counsel for both parties have been diligent in the citations and review of cases both from this and other states, but we think this case rests upon a reasonable construction of the saving clause in the condition above quoted.

This clause is presumed to have been an inducement for the issuing and acceptance of the policy, and, in view of the liberality allowed the policy holder by this clause, we think it would be a reasonable construction to hold that the policyholder would not be required to give notice within the thirty days after the accident, if no serious injury was indicated at the time of the accident.

The petition distinctly avers that while the plaintiff received a hard blow over the left eye, yet no serious injury was indicated and the plaintiff had no actual knowledge of the serious injury to the eye until some months later.

We think it is not reasonable undér this policy to require the insured to give notice of every small injury received, but only in cases where some material or substantial injury is reasonably apparant.

Counsel rely upon the case of *Travelers Insurance Company*v. *Myers,*62 O. S., 529.

This case is distinguished first in the nature of the notice clause, and second in the fact that in the Myers case the insured had full knowledge of the injury at the time of the accident.

We are of opinion that the demurrer in this case should have been overruled.

The American Casualty Company Case.

The policy in this case contained the following:

> “Written notice of any injury, fatal or non-fatal, for which claim can be made shall be given to the company at its home *489office at Reading, Pennsylvania, within ten days from the date of the accident. ’ ’

The argument is made by counsel for defendant in error that this stipulation, being absolute in its terms, must be liberally complied with in all cases before a recovery can be had. Counsel rely particularly upon the Myers ease in 62 O. S., 529, and the Coldham case, 2 N. P., 358, affirmed by the Supreme Court, 57 O. S., 657. The Myers ease is distinguishable from the ease at bar. There the facts were all known to the assured at the time of the accident, and notice was delayed merely because the assured hoped that by making no claim or investigation the injured parties would not bring the action. Later suit was brought against the insured and, when the insured came to assert his claim against the insurance company, it was held that he had lost his claim by failure to give notice provided for in the policy.

In the case at bar under the averments of the petition the assured had no knowledge of the injury to the eyesight for which claim is now made.

The Coldham case contained three limitations; one required immediate notice, one required proof of death in seven months and the other required the action to be brought in twelve months. No action was brought until after thirteen months. The Supreme Court may have affirmed the judgment upon either one of the three limitations. There was no reason for not bringing the action within one year and very little, if any, excuse for not .making the proofs of death within seven months.

Taking the decision of Judge Pugsley, as to the giving of immediate notice, there is a distinction between that case and the present, because in that case the beneficiary had notice of all the substantial facts as to the accident and the cause of death, and Judge Pugsley holds that she should have at least notified the company of the information in her possession. It is claimed, however, that the Myers case settles the proposition that a stipulation in a policy as to giving notice must be strictly followed in all cases regardless of the possibility of giving such notice.

While it is stated in the Myers case that the stipulation as to notice must be strictly followed, yet in later cases the Supreme *490Court has held that where the terms or conditions of a policy are doubtful they must be construed liberally in favor of the policyholder. *Bank*v. *Insurance Co.,*83 O. S., 309; *Webster*v. *Dwelling House Ins. Co.,*53 O. S.; 558; *Mumaw*v. *Insurance Co.,*97 O. S. (O. L. R., April 1, 1918).

It was also held in the Webster case *mpra*that conditions of forfeiture are to be liberally construed in favor of the beneficiary.

From the petition the following appears in respect to the accidental injuries insured against:

> '“If such injuries shall result within two hundred weeks from the date of the accident in the irrecoverable loss of the entire sight of one eye, one-half of the principal sum shall be paid to the insured.”

Also the following:

> “If such injuries shall result within two hundred weeks from the date of the accident in the irrecoverable loss of the entire sight of both eyes the principal sum shall be paid to the insured. ’ ’

From this item of the policy it would appear that the loss of the eye sight insured against, was not necessarily one resulting instantaneously and immediately from the accident, but might exist in a latent condition for a considerable period.

The ease stated in the petition shows that the injury to the eye was not discovered at the time of the accident or within the period allowed under the express terms of the stipulation for notice to the company.

If a strict and literal interpretation is to be given to the “notice” clause, many cases of injury to eye sight would be foreclosed because of the inability from one cause or another of the claimant to give the notice.

We think a liberal construction of the “notice” clause is reasonably necessary to preserve the main purpose of the insurance.

It would not be fair to assume that either the company or the assured intended by the “notice” clause to foreclose the possibility of asserting a claim so clearly and distinctly conferred by the obligatory terms of the policy.

No cases entirely in point are found in this state, although the following cases show a liberal construction of the “notice” clause: *491*Manufacturers Accident Indemnity*v. *Fletcher,*5 C. C., 633; *American Accident Co.*v. *Card,*13 C. C. 154, affirmed by the Supreme Court, 41 W. L. B., 178.

The question has frequently arisen in other states, and while there is conflict .upon this question we think the weight of authority sustains a liberal interpretation in favor of the policyholder, and where it is impossible for the policyholder to give notice within the stipulated period it may be given immediately upon discovery of the accidental injury.'

*U. S. Casualty Co.*v. *Hanson,*20 Col. App., 394:

> “In an action upon an accident insurance policy where at the time of the accident plaintiff thought he was not injured, and for seven months afterwards he and his physicians attributed suffering to rheumatism instead of the accident, his failure to give notice of the injury within ten days as required by the policy would not defeat his action where he gave notice as soon as he learned from a correct diagnosis of his ease that his condition was the result of the injury from the accident.”

*Peoples Mutual Accident Co.*v. *Smith,*126 Pa., 317.

> “His claim was for the loss of his eye, and it is difficult to see how he could with any propriety make such a claim until he had actually lost it, or it had become clear that he would lose it. How could he have truthfully made claim on the fifth of September. And had he done so and his eyesight been restored, the probability is the defendant company would have criticised his claim even more closely than it has done now. ’ ’

*Maryland Casualty Co.*v. *Ohle.,*87 Atl. Rep. 763.

> “I see no reason which requires notice to be given of the loss of an eye, until the eye is destroyed, any more than in a life policy a man should give notice of his death .before he dies.”

*Phillips*v. *Benevolent Society,*120 Mich., 142.

> “Notice was sufficient since the member could not be deprived of benefits, in the absence of a definite provision to that effect, by reason of the mistake of his *physicians.’’ Boric*v. *Railway Officials & Employees’ Accident Company,*119 Fed. Rep., 63.

*492"We have therefore reached the conclusion that under a reasonable construction of the stipulation in the policy as to notice, together with other terms of the policy as disclosed in the petition, the demurrer to the petition should have been overruled.

Judgment reversed.

Kunkle and Allread, JJ., concur.