Opinion by
The appellee, Victor Meierdierck, plaintiff in a trespass action recovered a judgment against Herman Miller. This action was then taken against the Eureka Casualty Company, garnishee, to collect the judgment, Miller being an assured of Eureka. Eureka refused to pay the judgment alleging they had not received written noticе of the accident in accordance with the terms of the policy which provided that: “When an acсident occurs written notice shall be given by or on behalf *486 of the insured to the company or to any of its authоrized agents as soon as practicable.” This is not an unusual provision. Most, if not all, policies of liability insuranсe require notice of the accident within a certain time as a condition precedent to the imposition of liability on the part of the insurer.
The testimony disclosed that the accident occurred Octobеr 25,1955, and that the assured, Miller, wrote and mailed a notifying letter to Eureka on October 27, 1955. The letter was addressed tо the Chester Avenue office of the company, where they had been located prior to their removal to Walnut Street shortly before the accident. The garnishee-insurance company, questioned the mаiling of the letter and introduced evidence that the letter was not received. When the issue was presentеd to the jury the court charged: “If you find that the notice was not given by Mr. Miller, and if you find the inference and presumption are not sufficient to convince you by a fair preponderance of the evidence that that lеtter was mailed and received, then, of course, you should find for the defendant (garnishee).” The jury did find for the defendаnt-garnishee, and the lower court granted motions for a new trial from which order Eureka appealed.
It is wеll established that the assured claiming rights under an insurance policy has the burden of proving. compliance with the terms and conditions.
Unverzagt v. Prestera,
While the general rule is that depositing a properly addressed prеpaid letter in the post office raises the presumption that it reaches the destination by due course of the mail, and mailing a letter in such a way is prima facie evidence that it was received by the persons to whom it was addressed,
Cameron Estate,
Testimony contravening the receipt of the notice by Eurеka does not put into issue the question of whether the letter was received. The overwhelming weight of statistics clearly indicates that lettérs properly mailed- and deposited in the post office are receivеd by the addressees. Usually, the one who mails a letter is devoid, of any ability to prove receipt of the letter by the addressee. The testimony by the addressee that he did not receive the letter, while admissible, is admitted оnly because of the import of that testimony on the issue of whether the letter was mailed.
In this type of insurance contract the requirement that written notice be given implies the use of the mails in forwarding the notice. The responsibility of the assured and the responsibility of an offeree tendering an acceptance are similar. Whеre the use of the mails as a means of acceptance is authorized or implied from the surrounding cirсumstances, the acceptance is complete by posting the letter in normal mail channels, without mоre. Restatement, Contracts §66; I Williston, Contracts §83 (3d ed. 1957). See also
Cosgrove v. Woodward,
Appellees direct our attention to the court’s charge which disregarded the question of the timeliness of a delayed notice. The insurer did receive a notice from the assured some ninety-three days after the accident, but only seventy-one days after the assured had knоwledge that someone was injured. They urge that timeliness of the delayed notice was properly in issue regаrdless of the question of mailing of the original notice. Appellees rely on
Hughes v. Central Accident Ins. Co.,
Order affirmed.