Opinion
November 12, 1953.
January 4, 1954.
Insurance — Liability insurance — Policy — Terms — Notice of accident — "As soon as practicable".
It was Held that the court below had properly determined as a matter of law upon undisputed facts that an insured had given notice of an accident to the liability insurer "as soon as practicable" as required by the policy.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeals, Nos. 292 and 293, Jan. T., 1953, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March Term, 1952, No. 3538, in case of Richard J. Wardle et ux. v. William J. Miller and Lumbermen's Mutual Casualty Company. Judgment affirmed.
Attachment execution proceeding after judgment entered in action of trespass for personal injuries.
The facts are stated in the opinion, by FLOOD, J., of the court below, as follows:
Plaintiffs recovered judgment against defendant Miller as a result of an automobile accident and thereafter caused an attachment execution to be issued against Lumbermen's Mutual Casualty Company, Miller's insurer. In the answers to the interrogatories filed by the plaintiff the insurer defends upon the ground that notice was not given "as soon as practicable" as required by the policy.
The accident occurred on October 15, 1951. The plaintiff, according to the testimony, suffered a bumped head without any break in the skin or any lump and considered the accident of no importance at the time and so told the defendant. In January 1952, the plaintiff experienced eye flashes and suffered a retinal detachment which resulted in blindness in one eye. While she was in the hospital, defendant was informed that the eye injury might have been a result of the accident. The testimony is that defendant learned of the accident sometime in March. He notified the insurer on March 7, 1952. The question before us then is whether the circumstances excuse what would otherwise be a late notification ( Unverzagt v. Prestera, 339 Pa. 141 (1940). There is no question that circumstances of extenuation offered by the plaintiff prevent a finding by the court that the notice is too late. The question before us is whether the court, without submitting the matter to a jury, can decide as a matter of law that the notice was given within a practicable time in view of extenuating circumstances.
In the case of Unverzagt v. Prestera, supra, Mr. Justice DREW stated that lack of knowledge of the accident excuses delay as a matter of law provided the insured is not guilty of lack of due diligence. Ibid. at page 145. There was certainly no question of lack of due diligence after knowledge of the injury in the case before us since notice was given apparently within a week after defendant received such knowledge. Lack of knowledge of any substantial injury seems to us equivalent to lack of knowledge of the accident for this purpose. It has long since been held that lack of knowledge of any injury is equivalent to lack of knowledge of an accident. Schambelan v. Preferred Accident Insurance Co., 62 Pa. Super. 445 (1916), although no cause that we have seen decides whether or not lack of knowledge of any substantial injury suffered is equivalent to lack of knowledge of the accident. Judge CRANE of the lower court whose opinion was adopted by the Superior Court in Schambelan v. Preferred Accident Insurance Co., supra, seemed to indicate that this would amount to the same thing as lack of knowledge of any injury when he said at page 447:
"Defendant's counsel frankly admitted upon the argument of his motions that he was unable to cite any Pennsylvania authorities requiring notice to be given of an accident in the absence of any knowledge of a claim arising therefrom." Of course, it could hardly be said that mere lack of knowledge of any claim would excuse lack of diligence in giving notice if there was an obvious injury as to which it might be assumed that a claim would be made if an injured person consulted competent counsel. Here, however, there was a bump on the head accompanied by no appearance of injury and a slight headache which was relieved by an aspirin pill followed by no further discomfort for a period of over three months. No claim was filed. No reasonable person would expect one to be filed until the more serious injury developed. It seems to us that this is equivalent to a situation in which there was no knowledge of any injury and therefore the Schambelan case governs.
In as much as the garnishee does not appear to contest the fact that defendant did not know of any substantial injury until March and that notice was given by defendant to garnishee on March 7, judgment must be given for want of sufficient answers to the interrogatories.
Garnishee appealed.
Lynn L. Detweiler, with him Swartz, Campbell Henry, for appellant.
Maurice Freedman, with him Robert H. Arronson and Herbert H. Hadra, for appellees.
The question in this case is whether the court could say, as a matter of law, that the notice by an insured of an accident inflicting injury upon another was given to the liability insurer "as soon as practicable" as required by the policy. The material facts were undisputed. Hence, the question involved was necessarily one of law for the court to decide. The opinion of Judge FLOOD fully justifies the affirmative answer given for the court below.
Judgment affirmed.