96 So. 739 | Miss. | 1923
delivered the opinion of the court.
The appellee, Waters, obtained a judgment for one hundred and twenty dollars against appellant, insurance company, on an accident policy insuring appellee against accidents, from which judgment this appeal is taken.
It appears the insured, Waters, slipped and fell, which resulted in a serious injury, confining him to his bed for about thirty days. He notified the insurance company of his injury on a blank furnished with the policy for that purpose. This notice was given, however, about thirty-five days after the injury was received. One of the provisions of the policy, which, of course, was binding upon the insured, was that:
“Written notice of injury ... on which claim may be based must be given to the company within twenty days after the date of accident causing such injury.”
The contention of the appellant insurance company is that the clause in the policy requiring that the insured give notice of the accident within twenty days was violated by the insured, as it appears conclusively that he was not so disabled that it was not reasonably possible for him to give the notice during the time, and that, the provision being a condition precendent to the right of recovery, the failure to give the notice until thirty-five days after the accident ivalidated the policy.
The opposite contention of the appellee is that, while the clause requiring notice within twenty days may or may not be a condition precedent, yet the failure to give the notice within the time limit will not vitiate the policy, since the policy does not expressly nor impliedly provide a forfeiture for a failure to give the notice within the time stipulated, and since notice was given in this case within a reasonable time after the injury and before suit was filed, there was no forfeiture of the rights of the insured under the terms of the policy; in other words, that the provision of the policy here does not intend a forfeiture for failure to give the notice within the twenty days, if
We think the contention of the appellee is the correct vieiv, and is supported by the greater'weight of authority from the courts of other jurisdictions, and we adopt it as the sound and better view. 14 R. C. L., section 501, p. 1328. The judgment of the lower court is affirmed.
Affirmed.
