29 So. 2d 177 | La. | 1946
Lead Opinion
On March 31, 1943, an automobile being backed out of his home garage by Carl E. Toler fatally injured plaintiffs' minor son. Alleging negligence of the driver and that *21
the defendant had issued a public liability policy covering the car, plaintiffs brought this suit directly against that company under Act
Mrs. Jackson is Toler's niece. At the time of the accident she, her husband and little son lived in a house owned by Toler, a bachelor, furnishing him room and board, as rent. On the afternoon of the funeral, Mr. Jackson told Toler that he did not intend to sue. Later, Mrs. Jackson told Toler they did not expect to claim damages. Toler, under these circumstances, gave no notice to the company. In June, the Jacksons informed Toler that they expected to press a claim for the death of their child. Toler then gave notice to his insurer and a few days later, plaintiffs' attorneys made written demand upon that company. Further facts in the case and citation of Louisiana cases in point are in the opinion of the Court of Appeal reported in
Here, we are concerned with the single proposition as to whether the insurance company is relieved from liability to the parents because of the delay of eighty-two days in its receipt of notice that the accident had occurred. *22
The record supports the finding of the Court of Appeal that Toler was led to believe in March that no action would be taken by the plaintiff for the death of their son and that upon ascertaining in June that they had changed their minds, he gave notice and full information to his insurer and co-operated in the defense; that on June 25, plaintiffs themselves, through their attorneys, gave notice to the defendant; and that there was no fraud or collusion between the insured and the plaintiffs and the delay caused no substantial prejudice to the company.
In the case of Jones v. Shehee-Ford Wagon Harness Co., Inc., et al.,
The above quoted decision recognizes the fact that the average citizen who purchases a public liability policy seldom, if ever, becomes familiar with its detailed provisions but simply puts it away against the day when a claim may be made against him. Toler's action under the circumstances of the present case was not unusual or careless but rather what the average policyholder, inexperienced in law or claims, might have done in the same situation. There is no charge of fraud or collusion or showing of substantial prejudice to the insurance company by virtue of the delay in notice. Therefore, in view of the holding in the Shehee case, it would be just to hold that Toler's delay was not such as to justify the release of the defendant from liability under its contract of insurance.
The claim of the plaintiffs in this case is further strengthened by the fact that this is a direct action by them, as injured parties, under Act
Each case involving delayed notices must stand upon its own facts and circumstances. The Court may consider in balancing the equities, not only the time intervening between the accident and the date of notice to the insured, and whether or not the claim is a direct one by the injured persons, under Act
Having found in the case before us that the insured Toler had reasonable grounds to believe that no claim would be made until the June demand was made upon him; that there was no substantial prejudice to defendants; and that no element of fraud, collusion, or bad faith existed, we conclude that plaintiffs' right of action under the policy issued by the defendant has not been lost.
For the reasons assigned, the judgment sustaining the special defense is hereby overruled and the case is remanded to the district court for trial upon the merits; costs of appeal and of writs to this Court to be paid by defendant; other costs to await final outcome of the litigation.
Dissenting Opinion
In my opinion, the case of Jones v. Shehee-Ford Wagon Harness Co., Inc., et al.,
In that case the policy contained the condition that "The Assured shall give to the Company, or its authorized agent, immediate written notice of any accident causing loss coveredhereby and shall also give like notice of claims for damages on account of such accidents." (All italics ours.) There the insured gave notice to the insurer some 26 days after the accident, as soon as he had knowledge that the accident hadcaused loss covered by the policy. We held that this was a substantial compliance with the provisions of the policy with reference to the giving of notice of the accident.
In the case here under consideration, the pertinent provisions of the policy of insurance are as follows: "Upon the occurrenceof an accident written notice shall be given by or on behalf of the insured to the company or any of its authorized agents assoon as practicable."
Act
The majority opinion holds that the plaintiffs' right of action under the act has not been lost by the failure of the insured to give notice of the accident until some 82 days after it occurred (1) because the insured had reasonable ground to believe that no claim would be made until he was informed to the contrary some time in June, the accident having occurred on March 31; (2) because there was no substantial prejudice to the defendant, and (3) because no element of fraud, collusion, or bad faith existed.
Conceding all of these things to be true, I cannot agree with this conclusion, for in my opinion, under the facts in this case notice of the accident was not given as soon as practicable, or within the terms and limits of the policy.
To me, under the facts of this case, the reasons given in the majority opinion for the decision that the plaintiffs have not lost their right to sue the defendant would be just as applicable to, and full authority for, the same decision if no notice of the accident had been given whatsoever, which certainly would be contrary to the plain terms and conditions of the policy.
One of the main objects and purposes of Act
In my opinion, therefore, the decision of the Court of Appeal, First Circuit, reported in
*29I respectfully dissent.