Ruby Mae Pitts v. The Aetna Casualty & Surety Company

218 F.2d 58, 1954 U.S. App. LEXIS 3229

• Court: Court of Appeals for the Second Circuit
• Decided: December 8, 1954
• Docket: 48, Docket 23135
• Status: Published

Opinions

FRANK, Circuit Judge.

1. Section 167, subd. 1(d) of the statute provides that “failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured or by any other claimant thereunder if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.” On September 11 or September 17,1952, or at most 42 days after the accident, the company received written notice from Wiley’s broker. Assuming for the moment that this notice sufficiently complied with § 167, subd. 1 (c), we think that the jury was not irrational in finding as it did.

2. We think the written notice from Wiley’s broker satisfies the requirements of § 167, subd. 1(c). True, the notice was not “by or on behalf of the injured person”, since Griffith acted not on plaintiff’s behalf but on that of Wiley, the insured. We think, however, that the statute in using the disjunctive “or” —-in the words “by or on behalf of the insured or * * * by or on behalf of the injured person” — does not require the injured person to give written notice, when one had already been given by or on behalf of the insured. The legislature, we think, intended to provide (a) that the insured company should receive written notice and (b) that, if the insured failed to give written notice, the injured person must do so. We cannot believe that the legislature meant to call for a useless ceremonial by the injured person. In Bazar v. Great American Indemnity Co., 306 N.Y. 481, 119 N.E.2d 346, as we read it, the court held that, had the insured given written notice, the injured person, although he gave no notice, could have recovered against the insurance company.²

3. Defendant argues that here» so far as Wiley, the insured, was concerned, his written notice was not timely either under § 167, subd. 1(d) or under the provisions of the policy, and that therefore that notice could not serve as a substitute for a timely written notice by plaintiff, the injured person. The trial judge supplied the answer to that argument in his charge to the jury, when he said: “[E]ven if you think that such a delay on the part of Mr. Wiley, the insured, to give notice would have been unreasonable, that would not answer the question before you. The question with respect to Mr. Wiley is entirely different because he was confronted with different circumstances from those which confronted Mrs. Pitts. The most important of these is that he knew that he was insured. Mrs. Pitts and her lawyer did not know about the insurance until after they had brought suit. * * * The injured person has to have a reasonable time to find out who injured him and then ascertain from the person who injured him, as best he can, whether he is insured and, if so, the name and address of the insurance company.”³

Affirmed.

2 . The court held that, although Section 167, subd. 1(e) speaks of “notice given by or on behalf of the insured” but speaks of “written notice” on behalf of the injured persons, a provision of an insurance policy calling for written notice by the insured is valid.

In the instant case, the trial judge in his charge said that “The insurance company had not only received a notice from Wiley’s broker, but the summons and complaint which gave it complete notice of the accident.” Bazar v. Great American Indemnity Co., 306 N.Y. 481, 119 N.E.2d 346, perhaps holds that the summons and complaint do not constitute written notice by or on behalf of the insured to the insurance company. But even if, as to the summons and complaint, the trial judge here erred, the error is immaterial since the written notice from Wiley’s broker was alone enough, and the jury was not misled since this issue was not left to the jury.

The court in the Bazar case did not reach what was the main issue in the instant case: whether or not the injured party gave notice to the insurance company “as soon as reasonably possible after the accident.” It would have been futile for the Bazar court to consider that question, for Bazar, the injured party, did not give notice to the company until twenty-nine months after the accident, which was not “as soon as reasonably possible,” since he made no effort to determine whether the automobile which struck him was insured, and apparently learned of it, not through his own efforts, but by a telephone call from an agent of the insurer some twenty months after the accident.

3 . It is suggested that the oral disclosure by plaintiff’s lawyer to the company on September 23, 1952, may be regarded as a sort of adoption on plaintiff’s behalf of the previous written notice, given on behalf of the insured. But we do not consider that suggestion because the judge did not leave to the jury the question whether a notice as late as September 23 was timely.