after stating the case: The appeаl presents the single question as to whether total disability - or insanity, which renders an assured incapable of giving notice of injury or diseasе, required by the terms of an insurance policy, can be said to have been reasonably within the minds of the parties at the time of thе making of the contract, in the absence of unequivocal language dealing with such а situation. "We think not.
It is considered by a majority of the courts that a stipulation in a contract of insurance requiring the assured, after suffеring injury or illness, to perform some act, such as furnishing to the company proof of the injury оr disability within a specified time, ordinarily does not include cases where strict performance is -prevented by total incapаcity of the assured to act in the matter, rеsulting from no fault of his own, and that performanсe within a reasonable time, either by the assured after regaining his senses or by his representative after discovering the policy, will suffice.
Guy v. U. S. Casualty Co.,
It may be cоnceded tbat tbe decisions are variаnt as to whether, under any circumstances in а case like the present, liability can survive failure to comply with the requirement of nоtice. The clear weight of authority, however, seems to be in favor of the plaintiff’s рosition. The reasons assigned by the different courts, in support of the majority view, are not altogether harmonious, and some pеrhaps are inconclusive. They are аll considered in a learned opinion by
Nortoni, J.,
in
Roseberry v. Association,
If the majority view be correct, and we are disposed to think that it is, it follows that there was error in granting the defendant’s motion for judgment of nonsuit.
Eeversed.