102 Neb. 349 | Neb. | 1918
This was an action to recover on an employer’s liability policy issued by the Ocean Accident & Guarantee
There was no dispute between the parties as to the issuance of the policy on which the suit was brought or as to its terms, one of which was: “The assured, upon the occurrence of an accident, shall give Immediate written notice thereof, with the fullest information obtainable at the time, to the American head office of the corporation, or to one of its duly- authorized agents. The assured shall give like notice, with full particulars, of any claim made on account of such accident. If thereafter any suit is brought against the assured to enforce such claim, the assured shall immediately forward to the American head office of the corporation every summons or other process that may be served upon the assured.”
This provision was pleaded as a defense, and on this provision the court found for the defendant and dismissed the plaintiff’s action. The record and bill of exceptions show without serious dispute that on the 20th'
Wo quote the foregoing language with approval, and it seems clear that the assured in this case was under
This court does not look favorably on conditions of forfeiture, and tíiey are not to be adopted unless such was the obvious intention of the parties. In Phenix Ins. Co. v. Holcombe, 57 Neb. 622, Mr. Justice Sullivan, speaking for this court, said: “Forfeitures are not favored, and in contracts of insurance a construction resulting in a loss of the indemnity for which the insured has contracted will not be adopted except to give effect to the obvious intention of the parties.”
In Woodmen Accident Ass’n v. Pratt, supra, it was held: “When a time is fixed in a policy of accident insurance for the giving of the- notice of an accident and injury resulting therefrom for which indemnity is claimed, with the particulars thereof, which is reasonable in its character, this will ordinarily be regarded as a condition precedent to be complied with before a recovery can be had. . * * # The question of the sufficiency of the excuse offered, and the reasonableness of the time in which the- act is performed, (is) to be determined according to the nature and circumstances of each individual case; the beneficiary in all cases being required to act with diligence, and without laches on his part.”
In the case at bar it clearly appears that no one had any idea that a claim for damages would ever result therefrom. Indeed, Earl himself at all times stated that he was not hurt, and the abrasion on his finger was so slight that it never interfered with his work. In fact, he continued to perform his duties without complaint, receiving full pay for many months, and never notified the insured until his suit was brought. Notice of his
The judgment of the district court is reversed and the cause is remanded Mr further proceedings.
Reversed.