Hanna v. Commercial Travelers Mutual Accident Ass'n of America , 197 N.Y.S. 395 ( 1922 )

Finch, J.:

The action is upon a policy of accident insurance: In 1913 the insured disappeared, and no trace of him was found until 1917, when his automobile was dredged up from the bottom of the Delaware river. When last seen he was driving this automobile upon a stormy, rainy morning in 1913- He had previously expressed an intention to go from Philadelphia to New York, and one of the usual routes existing at that time was down Dyott street, turning left for the ferry. Dyott street terminates in the Delaware river, and the only protection at the foot thereof was some posts extending across the street, two of which were found to be broken. It was the plaintiff’s claim that the insured failed to turn off from Dyott street, and suffered death by accidentally' driving his car from the street into the river. This claim, as well as a defense set up by the defendant that the alleged injury and death of the insured happened while he was under the influence of intoxicating drink, was determined in plaintiff’s favor by the jury. Among other separate defenses pleaded, however, was failure to comply with the following provisions of the policy: “ Notice of every accident for or on account of which a claim may be made shall be given immediately after it happens to the Secretary at Utica, N. Y., in writing, with full particulars of the accident and injury, and failure to give such immediate written notice shall invalidate all claims under this contract which may be made on account of such accident^ and unless affirmative and positive proof of the death or injury and that the same resulted from causes covered by the contract shall be furnished within six months of the happening of such accident, then all claims based thereon shall be forfeited to the Association. Notice of death for which a claim may be made shall be given in writing to the Secretary of the Association within ten days from the date of such death, and failure to give such notice within said ten days shall invalidate any claim for loss by death.”

Concededly notice was not given within the time required by the terms of the policy, and, as was found by the trial court, no waiver of such provisions by the defendant was shown. It is the contention of the respondent that' such non-compliance was excused by the impossibility of compliance before a discovery of the facts which gave rise to the claim. The weight of authority, however, appears to be that, while as a general rule, where the performance . of a duty created by law is prevented by inevitable accident without the fault of a party, the default will be excused, yet when a person by express contract engages absolutely to do an act not impossible or unlawful at the time, neither inevitable accident nor other unforeseen contingency not within his control will excuse him, for the reason that he might have provided against them by his contract. (Whiteside v. North American Accident Ins. Co., 200 N. Y. 320.) In the case at bar, by the express terms of the contract, the provisions as -to notice were made conditions precedent to any liability.

Defendant is only liable by reason of its promise, and this promise cannot be enlarged by the court so as to fasten a liability on the defendant, which the latter did not undertake. The insured was at liberty either to accept or reject the offer of the defendant. The defendant was within its rights in undertaking only to be responsible for those accidents which were reported to it in time to permit it to seek witnesses of the occurrence while it was still fresh and the witnesses were still living. As was said by

Judge His cock in the Whiteside case: “All of these provisions and engagements enter into the substance of the contract which respondent is seeking to enforce, and under such circumstances the courts will not relieve either party under the conditions here presented from fulfillment of the engagement which he has voluntarily undertaken.” The plaintiff relies upon the case of Trippe v. Provident Fund Society (140 N. Y. 23) as an authority for the contention that the time in which to give notice did not begin to run until discovery of the facts constituting the claim. It appears, however, that the decision arrived at in that case was in fact based upon a waiver by the defendant of the provisions of the contract, and, therefore, the statements of the court, upon which reliance is placed by the plaintiff, must be regarded as dicta, which have not been followed by the later decisions of the same court. (Whiteside v. North American Accident Ins. Co., supra.)

It follows that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

Merrell and Greenbaum, JJ., concur; Clarke, P. J., and Dowling, J., dissent.