after stating tbe case: Tbe accident occurred 28 June, 1925; tbe extent of tbe injury was not known until 8 August following; written notice was given to tbe defеndant 12 September thereafter; "Was this a sufficient compliance with “Condition C” of tbe policy,'requiring immediate written notice of tbе accident, under all tbe facts and circumstances disclosed by tbe record? We think the evidence was such as to carry tbe question to tbe jury.
Tbe trial court was correct in refusing to bold, as a matter of law, tbat tbe notice was not given as soon as reasonаbly practicable under tbe circumstances, or without unnecessary delay, and in submitting tbe question to tbe jury to determine whether tbe plаintiff bad acted with reasonable promptness in the matter. Tbe expression “immediate written notice,” as used in tbe policy, we apprehend, was intended to impose upon tbe plaintiff tbe exercise of reasonable diligence in giving tbe required noticе, which, under tbe apparent weight of authority, should be measured by bis ability and opportunity to act in tbe premises.
Carey v. Farmers, etc., Ins. Co.,
*159
The following from the opinion of the Supreme Court of New Hampshire in the case of
Ward v. Md. Cas. Co.,
“The defendants’ liability depends in part upon the answer to the question whether the plaintiffs gave them 'immediate’ notice in writing of O’Connell’s accident, the clаim made on account of it, and the suit that was brought to enforce the claim. This involves an ascertainment of the meaning of the wоrd 'immediate’ as used in the policy. The word, when relating to time, is defined in the Century Dictionary as follows: 'Without any time intervening; without any delay; рresent; instant; often used, like similar absolute expressions, with less strictness than the literal meaning requires — as an immediate answer.’ It is evident that the word was not used in this contract in its literal sense. It would generally be impossible to give notice in writing of a fact the instant it occurred. It cannot be presumed that the parties intended to introduce into the contract a provision that would render the contract nugatory. As 'immediate’ was understood by them, it allowed the intervention of a period of time between the occurrence of the fact and the giving of notice more or less lengthy according to the circumstances. The object of the notice was оne of the circumstances to be considered. If it was to enable the defendants to take steps for their protection thаt must necessarily be taken soon after the occurrence of the fact of which notice was to be given, a briefer time wоuld be required to render the notice immediate according to the understanding of the parties than would be required if the object сould be equally well attained after considerable delay. For example, a delay of weeks in giving notice of the commеncement of the employee’s suit might not prejudice the defendants in preparing for a defense of the action, while a much shorter delay in giving notice of the accident might prevent them from ascertaining the truth about it. The parties intended by the language used that the notice in each case should be given so soon after the fact transpired that, in view of all the circumstances, it would be reasonably immediate. If a notice is given 'with due diligence under the circumstances of the case, and without unnecessary аnd unreasonable delay,’ it will answer the requirements of the contract. . . . Whether the notices were reasonably immediate — like the kindred question of what is a reasonable time — are questions of fact that must be determined in the Superior Court.”
Speaking to the subject in
Harden v. Ins. Co.,
Again, in
Woodman Accident Assn. v. Pratt,
It may be conceded that the decisions on the subject are variant, some holding that “as a man consents to bind himself, so shall he be bound” according to the literal meaning of the terms used in the contract, while others seemingly take a more liberal view of what the parties really intended,' look with disfavor upon forfeitures, and sustain a recovery even in the face of a failurе strictly to comply with the requirements of notice, where the notice given complies substantially with the spirit and meaning of the contrаct. 14 R. C. L., 1333. With this latter view, our own decisions are in full accord.
Allgood v. Ins. Co.,
It should be observed, perhaps, that we are not now dealing with a provision requiring- something to be done before loss or injury, such as the payment of premiums at a stipulated time, or observing conditions which affеct the nature and desirability of the risk. Such stipulations are usually regarded as of the essence of the contract, and on their compliance depends the life and success of the insurance company.
Clifton v. Ins. Co.,
*161
There was nothing said in
Peeler v. Casualty Co.,
While the ease is not altogether free from difficulty, we have concluded that, on the whole record, the verdict and judgment should be upheld.
No error.