In October, 1913, the appel-lee, J. M. Pressler, was a contractor engaged in the construction of a building in Jacksonville, Tex. In the prosecution of his business he employed laborers, among .whom was his father, Otto Pressler. On the 9th of October, 1913, Otto Pressler, while engaged in the performance of his duties, fell from a scaffold and sustained serious bodily injuries. At the time of this accident the ap-pellee held an employers’ liability policy of insurance, provided that for a stated consideration the aрpellant agreed to indemnify the appellee against loss from liability imposed by law upon him for damages on account of bodily injuries or death suffered by his employes through his negligence and as the result of an accident occurring while the рolicy was in force. The policy contained, among others, the following provisions:
“A. Upon the occurrence of an accident, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to thе company at its home office or to the agent who has countersigned this policy. If a claim is made on account of such accident the assured shall give like notice thereof with full particulars. If thereafter any suit is brought against the assured tо enforce such a claim, the assured shall immediately forward to the company at its home office every summons or other process as soon as the same shall have been served on him. The company reserves the right to settle any claim or suit. Whenever requested by the company, the assured shall aid in securing information, evidence and the attendance of witnesses in effecting settlements and in prosecuting appeals. The assured shall at all times render to the company all co-operation and assistance within his power.”
“C. The assured shall not voluntarily assume any liability nor interfere in any negotiations or legal proceedings conducted by the company on account of any claim; nor, except at his own cost, settle any claim; nor without the written consent of the company previously given, incur any expense, except that he may provide at the time of the accident, and at the cost of the company, such immediate surgical relief as is imperative.”
“I. No action shall be brought against the company under or by reason of this policy unless it shall be brought by the assured for a loss, defined hereunder after final judgment has been rendered in a suit described hereunder and within two years from the dаte of such judgment, to wit: For a loss that the assured has actually sustained by the assured’s payment in money — (a) of a final judgment rendered after a trial in a suit against the assured for damages on account of the negligence of the assured; (b) of the expеnses (excluding any payment in settlement of a suit or judgment) incurred by the assured in the defense of a suit against the assured for damages on account of the negligence of the assured. The company does not prejudice by this condition any defense against such action as it may be entitled to make under this policy.”
Some time after the injury both the appel-lee and. his father concluded that the accident occurred under circumstances which made the appellee liable for the resulting damages. Written notice, of the accident and the claim for damages was given on the 25th of October following the injury, about 16 days after its occurrence. Some time during the following month the appellant, through some of its agents, made an investigation of the circumstances attending the accident, but refused to make any settlement of the claim. Suit was then filed by Otto Pressler against the appellee for damages. Notice of the institution and pendency of that suit was promptly given to the appellant, but it refused to take any part in the defense or to become a party to the proceeding. A judgment was thereafter rendered in that suit, in favor of Otto Pressler against the appellee for the sum of $3,500 as damages for the injuries sustained. This amount .was settled by the appellee and his father in some manner satisfactory to them. Upon the *328 refusal of the appellant to reimburse the appellee this suit was instituted.
■ In response to special interrogatories the jury found the following facts: (1) That “immediate” notice .was given to the appellant by the appellee of the accident and injury to his father, in the manner and form required by the policy; (2) that this notice was given on the 25th of October following the injury; (3) that the appellee gave due notice to the appellant of the suit instituted against him by his father; (4) that the appellant, after having received these notices, denied its liability and failed and refused to defend the suit after having full opportunity to do so; (5) that the judgmеnt in that case was not obtained by collusion or fraud, and was not rendered by agreement between the parties; (6) that neither the appellee nor his attorneys encouraged or assisted Otto Press-ler in bringing the suit and recovering the judgment in that case; (7) thаt the appellant after having received notice of the injury in October, 1913, investigated the accident to Otto Pressler, and by such conduct waived the giving of an earlier notice; (8) that the appellant sustained no injury by reason of not having received a notice of the injury on the day that it occurred, or prior to the time it did receive such notice; (9) that the appellant had an opportunity and did make an .investigation of the facts and circumstances surrounding the accident to Otto Pressler, while the condition of the scaffolding and location of the witnesses to the accident and injury were substantially the same as they were at the time the accident occurred; (10) that the appellee had paid in money the amount of thе judgment and costs rendered against him in favor of his father; (11) that Otto Pressler was injured to the extent of $3,500; (12) that the item of $150 claimed by the appellee as attorney’s fees paid to Lee G. Carter was incurred by him in a bona fide effort to defend the suit b.y his father; (13) that the appellee had paid the judgment in good faith. Upon these •findings the trial court entered a. judgment .in favor of the appellee against the appellant for $3,500, together with $9.65, the amount of costs paid in the suit of Pressler v. Press-ler, and. $150 as attorney’s fees incurred by the appellee in defending that suit. The appellant’s brief contains a number of different assignments of error, some of them presenting the same question in different forms. There appear, however, two principal grounds upоn which it relies for a reversal : (1) The failure of the appellee to comply with the terms and conditions of the policy, requiring the giving of “immediate” written notice of the accident; and (2) that the judgment in favor of Otto Pressler against the appellеe was the result of collusion and fraud.
“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 claim madе on account of it, and the suit that was brought to enforce the claim. This involves an ascertainment of the meaning of the word '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. dеlay; present; 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 bеtween the occurrence of the fact and the giving of notice more or less lengthy, according to the circumstances. The object of the notice was one of the circumstances to be considered. If it was to enable the defendants to take steps for their protection that must necessarily be taken soon after the occurrence of the fact of which notice was to be given, a briefer time would be required to render the notice immediate according to the understanding of the parties than would be required if the object could be equally well attained after considerable delay. ⅜ ⅜ * The parties intended by the language used that the notice in each case should be given so soon after the faсt 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 and unreasonable delay,’ it will answer the requirements of the contract (citing authorities). 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.”
*329 The language quoted is applicable to the case before us, and renders further discussion of that unnecessary.
The fact that the parties to the suit of Pressler v. Pressler were near relatives, while a circumstance favorable to an inference of fraud and collusion, does not make such an inference irresistible. The judgment of the district court will therefore be affirmed.
igz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
©r^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes