#### J. HYMAN MEWBORN v. THE EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Ltd., and L. J. MEWBORN, Administrator of N. PALMER MEWBORN, Jr.

(Filed 30 December, 1929.)

1. Insurance J d — Condition that notice of accident he given immediately to the insurer is construed to mean with reasonable promptness.

The condition in a policy of accident insurance that notice of an accident covered by the policy be given the insurer immediately in writing will be construed to mean with reasonable promptness, or to impose upon the insured the duty to exercise reasonable diligence in giving the required notice, measured by his ability and opportunity to act in the premises, and a forfeiture of the policy for failure to comply strictly with such provision will not be declared where the notice given complies substantially with the spirit and meaning of the contract.

2. Same — Whether insured gave notice of accident with reasonable promptness held question for the jury.

Where notice of an accident covered by the policy of insurance is given the insurer two months and a half after the accident and a month and four days after the extent of the injury is known, and there is evidence tending to show that the mind of the insured was so affected by the accident that he was incapable of giving notice, and that the notice was given in time for the insurer to protect itself so that neither the risk nor the rights of the insurer were jeopardized by the delay: Held, the question of whether the notice given was a sufficient compliance with the condition of the policy requiring immediate written notice of an accident was for the determination of the jury under the facts and circumstances of the case.

Brogden, J., dissents.

Appeal by defendant, Assurance Corporation, from Nunn, J., at June Term, 1929, of Lenoir.

Civil action to recover on a personal-injury and property-damage contract of insurance.

By tbe terms of tbe policy in suit, tbe defendant agreed to indemnify tbe plaintiff, owner of tbe 1923 model Ford roadster covered by tbe contract of insurance, against (1) loss from legal liability for damages on account of bodily injuries, including death resulting therefrom, accidentally sustained by any person, to tbe extent of $5,000 for one person, and $10,000 for more than one, and (2) loss from legal liability for damages on account of tbe accidental injury to or destruction of property covered by tbe policy, including tbe resultant loss of use of such property, subject, among other things, to tbe following stipulation :

“Notice.' — Condition C. Upon tbe occurrence of an accident covered by this policy, tbe assured shall give immediate written notice thereof to *157the corporation or its duly authorized agent. The assured shall give like notice with full particulars of any claim made on account of any such accident. If any suit or other proceeding mentioned in Agreement III is instituted against the assured on account of any such accident, the assured shall immediately forward to the corporation or its duly authorized agent every notice, summons, or other process served upon the assured.”

The policy of insurance was in force on 28 June, 1925, when plaintiff’s car, operated by his adopted son and in which his nephew, N. Palmer Mewborn, Jr., was riding, collided with another car on the Kinston-Snow Hill highway, resulting in serious bodily injury to plaintiff’s said nephew, from which he died 8 August, 1925.

Written notice of the accident was given to the defendant on 12 September following. Defendant denied liability because of plaintiff’s delay in giving notice.

Thereafter, at the November Term, 1927, Lenoir Superior Court, the administratrix of N. Palmer Mewborn, Jr., deceased, in an action for wrongful death, recovered a judgment against the plaintiff in the sum of $10,000. The defendant had due notice of this suit, which was instituted 26 June, 1926, but declined to defend it, or to take any part in its defense, preferring to rely upon its alleged nonliability under the policy because of plaintiff’s failure to give immediate notice of the injury.

In excuse of the delay, plaintiff offered the testimony of his physician, partner, and others, tending to show that he was so shocked and overcome by the act of his son-in-law, which caused his nephew to linger in a desperate condition from 28 June till his death on 8 August, as to affect his mental processes and rendered him incapable of “originating an idea or discovering an old one,” and unfit to attend to business matters up to the time notice was given to the defendant by plaintiff’s wife on 12 September, 1925. He was “much depressed and mentally affected, very much so. There was a very decided change in the man all during that time and for a good while afterwards.”

Dr. J. M. Parrott testified in substance as follows: Mr. Mewborn is a man of unusually fine sensibility and high sense of honor. He was profoundly impressed, and during that time was not competent to originate an idea without outside suggestion, though he was entirely competent to transact his business if matters were called to his attention. I do not believe that he would have thought about a financial matter of this character under the circumstances. If his farming operations and other business were called to his attention, he could no doubt have attended to them, and did, but I do not think he was in a. condition to originate an idea, or to discover an old one. “I think he is of that *158unusual bigb type tbat be ratber disregards money, and under those distressing circumstances I don’t believe be would be liable to tbink about tbe money side or remuneration tbat be might obtain. I tbink this attitude principally came from bis grief or tbe effects of grieving over tbe accident plus tbe natural tendency of Mr. Mewborn. To be frank, Mr. Mewborn is a very unusual man. He is not tbe type tbat think's much of tbe money side. He lives"in a ratber bigb thought. Tbat type of mind is not liable to tbink about money and material matters under these circumstances.”

Plaintiff’s partner testified: “He was very much grieved all tbe time, and some time after Palmer Mewborn’s death; be did not seem to have bis mind on bis business at tbe store or farm. I looked after tbe store, but be did not seem to have bis mind on tbe farm, but all on this boy.”

Tbe defendant, in reply, offered evidence tending to show tbat tbe plaintiff “went about bis usual duties except be.appeared to be sometimes thinking of things and was grieved over tbe accident.”

Mrs. Mewborn testified: “I certainly did not consider my husband crazy at tbat time, nor do I now.”

Upon denial of liability and issues joined, there was a verdict and judgment for tbe plaintiff, from which tbe defendant appeals, assigning errors.

Dawson & J ones for plaintiff.

O. H. Cover for defendant, appellant.

Stacy, C. J.,

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 defendant 12 September thereafter; "Was this a sufficient compliance with “Condition C” of tbe policy,'requiring immediate written notice of tbe 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 reasonably practicable under tbe circumstances, or without unnecessary delay, and in submitting tbe question to tbe jury to determine whether tbe plaintiff 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 notice, 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., 27 Or., 146, 40 Pac., 91; Rhyne v. Ins. Co., 196 N. C., 717, 147 S. E., 6.

*159The following from the opinion of the Supreme Court of New Hampshire in the case of Ward v. Md. Cas. Co., 41 Atl., 900, has been approved by the Supreme Court of the United States (Fidelity & Deposit Co. v. Courtney, 186 U. S., 342), and in many jurisdictions, as the proper construction of such a provision in a contract of insurance:

> “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 made 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 delay; 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 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 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. For example, a delay of weeks in giving notice of the commencement 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 and 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., 164 Mass., 382, it ivas said by Morton, J., delivering the opinion of the Court: “Whether the *160statement was 'forthwith rendered’ depended on whether, taking all of these circumstances and considerations into account, the plaintiff used due and reasonable diligence. If he did, then it was 'forthwith rendered,’ within the fair meaning of the policy; and whether he did or did not was a question of fact for the jury.”

Again, in Woodman Accident Assn. v. Pratt, 62 Neb., 673, 87 N. W., 546, Holcomb, J., after a full review of the authorities, says: “In respect of the rule of construing provisions in a, contract of insurance for notice of accident and injury or loss or damage and proof of the same to be given ‘forthwith’ or ‘immediately’ or within a stipulated time, the authorities are not entirely harmonious, and yet from the examination we have been able to make in the limited time a.t our command the great weight of authority is to the effect that the exercise of due diligence and reasonable effort on the part of the insured to meet the requirements thus imposed, to be determined under all the circumstances as disclosed in each individual case, is deemed a compliance with such provisions although not within the time according to the strict letter of the terms used in defining the same.”

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 failure strictly to comply with the requirements of notice, where the notice given complies substantially with the spirit and meaning of the contract. 14 R. C. L., 1333. With this latter view, our own decisions are in full accord. Allgood v. Ins. Co., 186 N. C., 415, 119 S. E., 561; Grabbs v. Ins. Co., 125 N. C., 389, 34 S. E., 503.

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 affect 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., 168 N. C., 499, 84 S. E., 817. It is also conceded that there is a reasonable basis and valid cause for inserting the present stipulation in the contract. But the risk assumed has neither been increased, nor the rights of the defendant jeopardized, by the delay of the plaintiff in giving notice of the injury. We are not, therefore, disposed to adopt a hard-and-fast rule which would relieve the defendant from liability, voluntarily assumed on its part for a consideration, and deny to the plaintiff all right of recovery.

*161There was nothing said in Peeler v. Casualty Co., 197 N. C., 286, which, when properly interpreted, militates in any way against our present position.

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.

Bbogdekt, J., dissents.