173 A. 489 | Pa. Super. Ct. | 1934
Argued April 26, 1934. This action of assumpsit was brought against the Metropolitan Life Insurance Company upon a policy insuring against bodily injuries caused, directly and independently of all other causes, by violent and accidental means.
The plaintiff, a salesman and district manager of a chemical company, was insured in the defendant company under a policy, issued June 26, 1924, in consideration of a semi-annual premium of $9.90. On Friday, August 28, 1931, in leaving the high school at Greenville, Pa., he bumped into a door jamb, striking *585 his right eye. While driving back to Pittsburgh, where he lives, he noticed that the sight of his right eye began to grow dim. That night he bathed it, and on Saturday went to see a doctor, who was not able to give him attention. On Monday, the 31st, Dr. Metzger examined him and found that he had detachment of the retina and no serviceable vision of the eye. Although there were signs of contusions on his face and eye, the doctor could not state specifically that the condition of the eye was caused by an injury, as detachment of the retina may happen from disease as well as injury. He stated that the plaintiff was myopic to a heavy degree, and that a near-sighted eye is more susceptible to detachment of the retina than a far-sighted eye.
The policy provides that written notice of injury must be given to the company within twenty days after the date of the accident, but "failure to give notice within the time provided in this policy shall not invalidate any claim if it be shown not to have been reasonably possible to give such notice and that notice was given as was reasonably possible." In addition to that notice, proof of loss must be filed within ninety days after date of the loss. It is admitted that no notice of any kind was given the insurer until the last week in November, and that written notice, which the policy requires, was not given until the 18th of December, 1931.
The defendant contends that it is entitled to judgment (1) because plaintiff has not complied with the terms of the contract in filing notice and proof of claim within the time limit in the policy; and (2) that he has not met the burden of showing that his condition is the result of injury sustained by violent and accidental means, independent of all other causes.
The plaintiff, in response to the question whether he knew he had an accident policy at the time he was *586 injured, answered: "Why I knew I had it, but I could not just recall the name at that time." Mrs. Donnelly, owing to the plaintiff's impaired vision, searched for the policy, but, as her husband did not give her any particular instructions where to look, she was unsuccessful in locating it. He admitted he did not ask her to examine the check stubs or his receipts, although he had been paying premiums for a period of seven years on this policy. His explanation of this omission was that he thought a reference thereto was not necessary or important as he did not know whether the policy protected him. The search was made for the policy on the 28th of August and no attempt was made for three months thereafter to locate it. The plaintiff learned the name of the insurer when he received notice to pay the premium the latter part of November. His wife then made a further hunt and found the policy in the cupboard in their home.
We think what is "reasonably possible" depends upon the facts and circumstances in each particular case, and is a question for the court, and not the jury, when the facts are not in dispute, to decide whether notice was given as required by the terms of the policy. Assuming the truth of all the plaintiff's evidence, the facts established do not show such due diligence and reasonable effort upon the part of the insured to find the policy and to give notice of the injury as required by its terms. In American Fire Ins. Co. v. Hazen,
The plaintiff, in support of the position that the question of whether notice was given as required was for the jury, chiefly relies on Curran v. National Life Ins. Co., U.S. of A.,
In view of our conclusion that the plaintiff failed to give notice of his injury as provided by the terms of the policy, it is unnecessary to consider the other question raised by defendant.
Judgment is reversed and is now entered for defendant. *589