251 Pa. 63 | Pa. | 1915
Opinion by
In this action the plaintiff sought to recover upon a contract of indemnity against legal liability for injuries resulting from the negligence of its employees. A verdict in an action of trespass, and payment of the judgment thereon, had fixed the amount of defendant’s liability, if it was liable under the terms of the contract. Defendant denied liability upon the ground that plaintiff, the insured, had not complied with the stipulation of the contract of insurance, with respect to the notice required to be given of the happening of the accident for the results of which the plaintiff was held liable.
It appears from the evidence, that in August, 1909, the plaintiff was engaged in the brewing business, and entered into a contract with the defendant, the Employers’ Indemnity Company of Philadelphia, by which it was insured against loss or expense from claims for damages on account of bodily injuries, accidentally suffered during a period of one year from the date of the
On October 30, 1909, a three-year-old child was accidentally injured by one of the assured’s teams, which was in charge of its driver. The fact of the accident was known the same day, by the immediate superior of the driver, a Mr. Clark, who represented the plaintiff in the county where the accident occurred. On January 27, 1910, nearly three months after the date of the accident, the assured was notified by a firm of lawyers that a claim for damages resulting from the accident had been placed in their hands. On April 1, 1910, an action to recover was commenced, and the summons was served on Mr. Clark, plaintiff’s representative on April 7th. It was not until April 20, 1910, that the plaintiff gave to the defendant, at its head office in Philadelphia, any information concerning the accident which had occurred on October 30th of the year before, or as to the claim made therefor by the attorneys in January, 1910. Counsel for appellant contends that this was not immediate notice, such as was plainly required by the contract, and that the court was in duty bound to have so instructed the jury. He maintains that under the facts in this case, which are clear and not disputed, the question whether there was compliance with the terms of the contract as to notice, was one of law for the court, and was not for determination by the jury. We think his contention is well founded. In 4 Cooley’s Briefs of Law of Insurance, p. 3570, he says: “Employers’ Liability policies very generally contain a requirement that the insured shall furnish immediate notice, both of any
The thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, twentieth, and twelfth assignments of error are sustained, and the judgment is reversed, and is here entered for the defendant.