Southern Surety Co. of Now York v. Heyburn

Under the majority opinion, it is left to the jury to say whether an ordinarily prudent and reasonable man who had with his automobile knocked a woman ten or fifteen feet to a hard asphalt street, tearing and soiling her clothing, could reasonably believe that such an occurrence was not one whichmight result in a claim against him for damages on account of bodily injury or for other causes, because, forsooth, the lady in the excitement of the occasion declined to give her name and unquestionably on account of stunned nerves declared she was not injured, when as a matter of fact she was severely hurt. I am almost tempted to say res ipsa loquitur. It is impossible for me to understand how any reasonably prudent man who had knocked a woman with his automobile so hard as to throw her fifteen feet to the ground, soiling and tearing her clothing, could reasonably believe that this was not an occurrence out of which a claim for damages might arise. The policy does not say "would" arise but "might" arise, and the word "might" means something less than a sure probability. The fact that the lady declined to give her name when asked and stated that she was not injured does not militate against this conclusion; for an ordinarily prudent man ought to know that when a woman has been knocked fifteen feet to an asphalt pavement, a condition of excitement and stunned nerves is as bound to follow as night is bound to follow day, and that one has no right to rely upon what a man or woman would say under such circumstances. It is true that the courts have held that in cases of apparently trivial accidents, there is no duty upon the insured under a clause of his insurance policy such as is here involved to give notice to the insurer until he acquires knowledge that the injury has taken on an aspect suggestive of a possible claim for damages, but in the light of the reasons upon which the courts uphold the reasonableness of the clause of the policy here involved and enforce it and which are so well expressed in the majority opinion, I am firmly of the view that the doctrine of trivial accident should be closely circumscribed and that the majority opinion in this case is an unwarranted extension of that doctrine. For instance, in Melcher v. Ocean Accident Guarantee Corp.,226 N.Y. 51, 123 N.E. 81, where a workman, hit by an elevator, said he was not hurt but later made a claim for damages, the doctrine of trivial accident was applied, and yet in the case of Haas Tobacco Co. v. American Fidelity Co., 226 N.Y. 343,123 N.E. 755, 756, 13 A.L.R. 132, where surely the accident was no more severe than in the Melcher case, the court declined to apply the doctrine. The only distinguishing feature between the two cases is that in the Melcher case the injured party said he was not hurt, while in the Haas case nothing was said by the injured party. But, as I have pointed out, a statement made under such circumstances should by a reasonable man who is held to know the ways of life and the experiences of mankind be considerably discounted, and he has no right to think that such a statement precludes the idea that a claim for damages might arise because of the accident. The truth of the matter is, the New York court, when confronted with the Haas case, realized that it had gone too far in the Melcher case, for it said: "The ruling in the Melcher case is not to be extended. Under the peculiar circumstances there disclosed, and in view of the full investigation made, it might fairly be said that a reasonable man was justified in believing the occurrence so trivial that no report was required." Which no doubt was a polite way the court employed in referring to its former opinion which it regarded as unsound, but which it was for some reason or other, perhaps because of the recentness of the former decision, unwilling to overrule.

The cases of Deer Trail Consolidated Mining Co. v. Maryland Insurance Co., 36 Wn. 46, 78 P. 135, 67 L.R.A. 275, the Haas case, supra, and Northwestern Telephone Exchange Co. v. Maryland Casualty Co., 86 Minn. 467, 90 N.W. 1110, refused to apply the doctrine of trivial accident under facts no stronger than those in the instant case. The Nebraska case of Chapin v. Ocean Accident Guarantee Corp., 96 Neb. 213, 147 N.W. 465, 52 L.R.A. (N.S.) 227, is the most extreme case from my point of view where the doctrine has been applied. I do not regard it as sound. The accident or occurrence which a reasonably prudent man in these times ought to think might not result in a claim for damages should be trivial indeed. As well said in McCarthy v. Rendle, 230 Mass. 35, 119 N.E. 188, 189 L.R.A. 1918E, 111: "The occurrence of an accident and injury, however slight, may result in litigation, even in protracted litigation. It is the experience of every defender of causes that it is a matter of first importance to become possessed of all material facts and of the names and residences of all known witnesses at the earliest possible moment, as facts may be forgotten or distorted and witnesses may go beyond reach. It is an important provision in that it is 'for the protection of the insurer against fraudulent claims, and also against those which, although made in good faith, are not valid.' "

I cannot bring myself to the conclusion that a jury could reasonably say that a necessarily prudent man could reasonably think the accident in the instant case was not one whichmight result in a claim for damages. I do not mean to say, of course, that the appellee is not ordinarily a reasonably prudent man, but even the reasonably prudent man is sometimes caught off his guard. However, if he is, and, to paraphrase Justice Holmes, walks too near the line that divides prudent from imprudent conduct, he takes the risk, and if he oversteps the line, he must bear the consequences with fortitude.

Therefore, while I agree in the reversal of this case, I think the appellant was entitled to a peremptory instruction. As the verdict in the first case was the same as would have been had if such an instruction had been given, I think the verdict and judgment in the first case should be reinstated. I am authorized to say that Chief Justice THOMAS concurs in these views and this opinion.