
    The Travelers' Insurance Co. v. Myers & Company.
    
      Insurance policy construed like other contracts — Insurance against loss from lidhility of employer to employe — Stipulation of immediate notice of accident to insurance company —Gannot he waived hy agent, whew — Law of agency.
    
    1. Policies of insurance should be construed, like other contracts, so as to give effect to the intention and express language of the parties. West et al. v. Citizens’ Insurance Go., 27 Ohio St., 1, approved and followed.
    2. In a policy which insures against loss from liability to employes of the insured who may accidentally sustain bodily injury while in the employ of the insured, “under circumstances which shall impose upon the insured a common law or statutory liability to such employes by reason thereof,” a stipulation as follows: “Immediate written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor,” is of the essence of the contract and cannot be waived by an agent of the company without authority therefor.
    3. When such policy contains a stipulation that “no agent has authority to waive or alter anything in this policy contained,” and the same is accepted by the insured, it is both notice to and an agreement by, the insured that an agent has no authority to waive or alter anything contained in the policy. Union Central Life Insurance Company v. Hook, ante, p. 256, approved and followed.
    4. “Immediate written notice” in such stipulation means written notice within a reasonable time under the circumstances of the case; and where the facts are not disputed, what is a reasonable time is a question of law.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Ashland county.
    The action was brought in the court of common pleas of Ashland county to recover under a policy of insurance issued to the defendant in error “against loss from liability to employes of the insured who may accidentally sustain bodily injuries while on the pay roll of the insured and while actually occupied by the performance of duty in the trade or occupation for which they have been employed by the insured and under circumstances which shall impose upon the insured the common law or statutory liability to such employes by reason thereof.” This policy contained the following stipulation: “Immediate
    written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made by employes and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor.” And also the following stipulation: “No agent has authority to waive or alter anything in this policy contained.”
    During the term of this policy, that is on October 27, 1894, Simon Ouster, an employe of the defendants in error, sustained certain personal injuries. This fact was communicated verbally by the insured to one Mason, who was at that time the local soliciting agent of the plaintiff in error at Ashland, in Ashland county, Ohio, Mason told the plaintiffs. defendants in error here, not to do. anything further at the present time, for likely the man would never say anything and that such an investigation into the circumstances of the accident as would be necessary in procuring statements of witnesses and employes might arouse the suspicion of Ouster and cause him to make a claim for damages and that if any claim was made by Ouster the plaintiff should inform Mason of the same and he would attend to it. Acting on this suggestion of Mason’s the insured gave no notice to the insurance company until July 22, 1895, nearly nine months after the accident to Simon Custer had occurred.
    Custer made no claim upon his employers for the injury until July 16, 1895, and then claimed that the injury which he had received had developed into >a serious difficulty. Promptly on receipt of the notice given July 22, 1895, that is on July 23, 1895, the insurance company declined to recognize the claim of the insured on the ground that the insured had not complied with the stipulations of the policy that immediate written notice be furnished to them of all accidents and with the necessary statements of the circumstances relating to the liability. The case vas tried in the common pleas court upon an agreed statement of facts, a jury being waived. The court gave judgment for the plaintiff, and upon petition in error to the circuit court the judgment was affirmed. The case comes into this court upon petition in error to reverse the judgments of the common pleas and circuit courts.
    
      Day, Lynch & Day, for plaintiff in error.
    Mason, the soliciting agent, brought the contracting parties together, and there his authority to represent the company ended, since it does not appear from the record that by the ordinary course of business he was held to have ampler powers. The principle controlling here was announced by this court in Insurance Co. v. Eshelman, 30 Ohio St., 647; Quinlan v. Ins. Co., 133 N. Y., 363.
    The burden of proof as to the scope of the agent’s authority is upon the defendants in error who seek to avail themselves of the alleged waiver of written notice. B. O. etc., v. Post, 152 Pa. St., 579; Wood on Ins., 396; May on Ins., 138-138a; Biddle on Ins., Sec. 122; Ostrander Ins., 140.
    ' We further contend that after the issuing and delivery of the policy to J. W. Myers & Co., the express stipulation therein controlled as to form of notice, time of giving notice and when J. W. Myers & Co. received this policy they were presumed to know and accept all its term and conditions. West v. Ins. Co., 27 Ohio St., 1.
    The defendant in error therefore knew as clearly as language could inform it, that no agent, special or general, had any authority to dispense with written notice of an accident to an employe nor to vary the time or manner of giving such notice. Maer v. Fidelity Association, U. S. Court of Appeals, Insurance Law Journal, April, 1897, page 292; Walsh v. Hartford Ins. Co., 73 N. Y., 10; Carey v. German Ins. Co., 84 Wis., 80.
    In Iowa it has been held that “under a policy making it an express condition that none of its provisions could be waived, except in waiting by the secretary, an adjuster cannot orally waive proof of loss required by the policy.” Kinkman v. Farmers’ Ins. Co., 90 Ia., 457; Martin v. Ins. Co., 84 Ia., 516.
    • Also in Michigan, in a late case, it has been held that a verbal waiver of a condition in the policy, by an agent of the company, will not prevent a forfeiture when the policy plainly provides upon its face, that no agent shall have power to waive any of its conditions except by writing endorsed on or attached to the policy. Gould v. Dwelling House Ins. Co., 90 Mich., 302; Cleaver v. Ins. Co., 65 Mich., 527; Golden v. Northern Assurance Co., 46 Minn., 471.
    
      Further, in a late Nebraska case, the court held that an agent could not verbally waive conditions in the policy when his authority in this respect was restricted by the terms of the contract. German Ins. Co. v. Heiduk, 30 Neb., 288; Smith v. Ins. Co., 60 Vt., 682; Porter v. U. S. Ins. Co., 160 Mass., 183; Kyte v. Commercial Co., 144 Mass., 43; Head v. Insurance Co., 2 Cranch U. S., 127; Ermentrout v. Girard Ins. Co., 63 Minn., 305.
    In addition to the authorities above quoted from we would respectfully invite the attention of the court to the following cases which we believe support the position above contended for: Machine Co. v. Ins. Co., 50 Ohio St., 549; Hawkins v. Rockford Ins. Co., 70 Wis., 1-5; Herbst v. Lowe, 65 Wis:, 321; Brown v. Ins. Co., 59 N. H., 298; Shengart v. Lycoming Ins. Co., 55 Cal., 408; Enos v. Sun Ins. Co., 67 Cal., 621; Lycoming Ins. Co. v. Langley, 62 Me., 196; Match Co. v. Ins. Co., 92 Wis., 510; Ins. Co. v. Wagner, (Tex.) Ins. Law Jr. Mch., 97, p. 261; Ins. Co. v. Snyder (N. J. Eq.) Ins. Law Jr. Mch., 97, p. 261; Phoenix Ins. Co. v. Stevenson, 78 Ky., 150; Havens v. Home Ins. Co., 111 Ind., 90; Smith v. Provident Assurance Society, 65 Fed. R,, 765; N. D. O. Id., 34 Bull., 37; Ins. Co. v. Holgraph, 53 Ill., 516; Universal Mut. Ins. Co. v. Weiss Bros., 106 Pa., 20; Potts-ville Mut. Fire Ins. Co. v. Improvement Co., 100 Pa.,. 137; Burlington Ins. Co. v. Kennerly, 60 Ark., 532; Sc. 31 S. W., 155; Dwelling House Ins. Co. v. Snyder,. 34 Atl., 931; Watch Co. v. Ins. Co., 66 N. W., 525; Underwood Veneer Co. re London G. & A. Co., 27 Insurance Law Journal, 910; Foster v. Fidelity & C. Co., 40 L. R. A., 833; State v. Osgood, 85 Maine, 288; McFarland v. U. S. M. A. A., 27 S. W., 436; Mandel v. Fidelity & C. Co., 170 Mass., 173; Electric 
      
      Light Etc. Co. v. Fidelity Co., 69 N. W., 307; Kimball v. Mason Frat. A. C. Assn., 27 Ins. Law Jr. 390; Smith v. Travelers Ins. Co., 50 N. E., 516.
    
      E. A. Myiranta, for defendants in error.
    It will be conceded that when this, accident occurred that the injury was slight. That the subsequent conduct of Custer in resuming work within a few days and continuing until the completion of the contract from six to eight months thereafter making no claim during all this time (that as a thing apart from the question of agency) said Myers and Co. consulted C. D. Mason and for the purpose of this statement simply because he was a well' informed individual, on the proper action to be taken. Their joint judgment was that for the benefit of all concerned that the wise policy to pursue under the circumstances was to keep the matter quiet and not precipitate a claim for damages by entering upon any investigation whatever at that time. If this was an act upon the part of Myers & Co. in line with what a reasonably prudent person would do under like circumstances, then may it now well be argued that under the evidence in this case no cause arose that warranted a rational belief that an accident such as would incur common law or statutory liability had arisen until the date of the Custer letter July 16, 1895. And that, therefore the questions presented here are out of this case as matter of fact.
    Considering this case however in the view that such an accident occurred as warranted and required notice to be given to the company in October, 1894, let us, examine very briefly the Ohio authority. We have no authority in Ohio that covers this contention and we must resort to general principles laid down in insurance cases. Mass. Life Ins. Co. v. Eshelman, 30 Ohio St., 647; Union Ins. Co. v. McGookey, 33 Ohio St., 565.
    The claim of the plaintiff in error is, — That by the terms of the provisions 4 and 10 of the policy of insurance it is relieved from liability, the claim of the defendant in error is that there was a full and complete compliance with all the provisions of the contract of insurance by the defendant in error: That .provision 4 of the policy calling for immediate written notice of all injuries to employes and claims made by them was fully complied with by defendant in error by the written advices given to plaintiff in error in July, 1895.
    The defendant in error thus gave plaintiff in error immediate written notice of the claims of the employe Ouster as soon as defendant in error had any knowledge of any claim being made by said Ouster. The plaintiff in error through its special agent, J. B. Williams acknowledged receipt of the communication of defendant in error on July 22, 1895, and refused to take any account of the claim made.
    It will be seen from the evidence and especially from the letters of Ouster that at the time of the disaster, as he terms it, he did not consider himself seriously injured; that his injury while slight at the time it occurred grew upon him and became chronic and that it was not until July 1895, that he felt that his injuries received from the accident were so severe that he should be entitled to damages from defendant in error.
    Can it be said under these circumstances that the conduct of the defendant in error with reference to notice to plaintiff in error, is not in line with what a reasonable, prudent person would do under like circumstances and can it be said under the evidence in this case that a cause arose that warranted a rational belief that an accident had occurred which would incur a common law or statutory liability until the date of Ouster’s letter on July 16, 1895? Mandell v. Fidelity & Casualty Co., 170 Mass., 173; 64 Am. St., 291; Harnden v. Ins. Co., 164; Mass., 382; 49 Am. St. Rep., 467, Baker v. Com. Union Assur. Co., 162 Mass., 385; St. Louis Ins. Co. v. Kyle, 11 Mo., 278; 49 Am. Dec., 74; Central City Ins. Co. v. Oates, 86 Ala., 558; 11 Am. St., 67, George H. West, et al v. Citizens Ins. o., 27 Ohio St., 1; Webster v. Dwelling Hous Ins. Co., 53 Ohio St., 563; Crane & Co. v. Accident Ins. Co., 3 Ohio N. P., 318; 6 Dec., 118; Carpenter v. German Am. Ins. Co., 31 N. E., 1015; Kentler v.Am. M. Acc. Assn., 60 N. W. R., 1002.
    Defendant in error acted as directed by said agent, made no inquiry as to the extent of the injuries of said Ouster and made no investigation and received no claim or demand from said Ouster until July, 1895. Defendant in error acted under the directions of said agent as he supposed and had a right to presume to be for the best interest of plaintiff in error. Said agent only .so far waived provisions as to giving of written notice as he ordered a delay in the giving of said notice until such time as the said Ouster might make a claim. Ins. Co. v. Wilkinson, 80 U. S. (13 Wall.), 222; Mass. Life Ins. Co. v. Henry Eshelman, 30 Ohio St., 647, Union Ins. Co. v. McGookey, 33 Ohio St., 555; Ins. Co. v. Williams. 39 Ohio St., 584; Ohio Farmer Ins. Co. v. Danison, 38 W. L. B., 163; Bebee v. Hartford Ins. Co., 25 Conn., 51.
    
      Notice to agent of material facts, is notice to the principal whether actually communicated or not. Peoples Ins. Co. v. Spencer, 53 Penn. St., 353; Liddle v. Ins. Co., 4 B. (N. Y.), 179; Beal v. Park Ins. Co., 16 Wis., 241; Hough v. City Ins. Co., 29 Conn., 10; Keenan v. Mo. St. Ins. Co., 12 Iowa, 129; Combs v. Hannibal Ins. Co., 43 Mo., 148; 65 Am. St., 717; Horton v. Home Ins. Co., 122 N. C., 498; 59 Am. St., 625; Snyder v. Dwelling House Ins. Co, 59 N. J., 544; 2 Am. & Eng. Enc. Law, Vol. 338; Hartford Fire Ins. Co. v. Keatney, 86 Md., 130; 63 Am. St. 499; Life Ins. & Inv. Co. v. Martin, 32 Md., 310.
    How far the notice given complies with the stipulation in the policy is a question for the jury. May on Ins., Vol. I., sec. 143, page 254; Aetna Ins. Co. v. Maguire, 51 Ill., 342; May on Ins., Vol. II, sec. 509, page 1172; Wood on Ins., secs. 391, 395, 421; Barber on Ins., pages 128 and 129; Richards on Ins., page 87, sec. 86.
    If the company holds out its agent to the public as authorized to do a particular act, or to transact a particular kind of business, this carries with it an authority to adopt the ordinary means, and to do and say the appropriate things, to accomplish the object for which the agent is employed. Ins. Co. v. Wilkison, 13 Wall., 222; Abraham v. Ins. Co., 40 Fed. Rep., 717.
    Certain states by statute, have adopted the rule that the soliciting agent shall be deemed the agent of the insurers no matter what the policy provides. Such statutes are constitutional and control the contract. Continental Life Ins. Co. v. Chamberlain, 132 U. S., 304; McConnell v. Iowa Mut. Aid Assn., 79 Iowa, 757; Revised Statutes of Ohio, sec. 3644; Ins. Co. v. Eggleston, 96 U. S., 572.
    
      Proof of loss may be waived by parol, though policy requires it to be in writing. German Ins. Co. v. Gibson, 53 Ark., 494; Burlington Ins. Co. v. Kennerly, 60 Ark., 532.
    Parol evidence is admissible to show waiver by acts in pais of an insurer notwithstanding a stipulation in the policy that nothing less than an express agreement indorsed on the policy shall be construed as a waiver of any of its conditions or restrictions. McFarland v. Kittanniny Ins. Co., 134 Pa. St., 590; 19 Am. St., 723, and note.
   Davis, J.

Policies of insurance, like other contracts, should be reasonably construed, so as not to defeat the intention and express language of the parties. West et al. v. Citizens’ Ins. Co., 27 Ohio St., 1. It was agreed by the parties to this contract of insurance, that immediate, written notice should be given to the company of any accident and of all alleged injuries, together with copies of all statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor. It is obvious that this stipulation is of the essence of the contract in insurance of this kind. It is not merely a stipulation as to the form of bringing to the notice of the insurer the fact of a loss, as in policies of fire and life insurance. It is clearly a matter of substance in the contract; because the obligation of the insurer is not against the mere happening of an accident or an injury, but against “loss from liability” to employes who may be accidentally injured while in the employ of the insured “under circumstances which shall impose upon the insured a common law or statutory liability to such employes by reason thereof.” The occurrence of an accident and injury, however slight, if it may result in a legal liability to an employe of the insured, would necessarily involve an inquiry into the facts and circumstances which may make the insured liable; and these must be communicated to the insurer, else there would be no notice to the insurer that there had been anything more than an accident without liability. In insurance of this character it is a matter of the first importance to the insurer, who may be forced to become the real -defendant in a lawsuit against the insured employer, to be speedily informed of all the facts and witnesses concerning a possible litigation. In a very little time the facts may in a great measure fade out of memory, or become distorted, witnesses may go beyond reach, physical conditions may change, and, more dangerous than all, fraud and cupidity may have had opportunity to perfect their work. Therefore, this stipulation is vital to the contract; and it need not be surprising that the policy contains an agreement that it shall not be waived by any agent, for it is declared by the insurer and accepted by .the insured that “no agent has authority to waive or alter anything in this policy contained.”

It is not claimed that written notice was given to the company at the time of the alleged accident and injury, nor for almost nine months thereafter; and it does not appear from the record that the company was at any time furnished with copies of all, or any, statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor. Immediate notice means notice within a reasonable time, and when the facts are not disputed, what is a reasonable time is a question of law. American Fire Ins. Co. v. Hazen, 110 Pa. St., 530; Kimball v. Ins. Co., 8 Gray (Mass.), 33; Bennett v. Ins. Co., 67 N. Y., 274.

There was nothing in the circumstances of this case to require or justify the delay of such notice for a period of nine months, and much to indicate that such delay was positively prejudicial to the insurer. But it is answered that the insured gave to the insurer immediate written notice of the claims of the employe who was injured, as soon as the insured had any knowledge of any claim being made by the employe. Notice of the claims of the injured employe, however, is not the thing stipulated for. The contract is that immediate written notice, that is, within a reasonable time, shall be given of any accident and of all alleged injuries together with information relating to liability therefor. This was not done. From the record of this case we are able to say that the proper notice could have been given within a few days after the accident, as well as, or better than, nine months afterAvards. The insured undertook at their own peril to decide whether there was, or would be, a liability or not, and whether the injury received was severe enough to require the stipulated notice to be given. Having assumed that hazard and realized their mistake, they have no one to blame but themselves, that they are left without a remedy.

Equally unavailing for the defendants in error is the claim that the stipulation for notice was waived by Mason, the insurance company’s local soliciting agent, or that the company is estopped to plead the contract in defense,' by misleading statements made by Mason. The apparent scope of Mason’s authority did not justify the insured in accepting and relying upon his words when this accident was verbally reported to him. He was a mere soliciting agent, and was invested with none of the powers of a general agent, or of a special adjusting agent. It does not appear to us that he was entrusted with any duties in regard to receiving and transmitting notice or of adjustment between the parties to the policy. So far as we are informed his duties ended when he received and transmitted to the company the application of the insured for the insurance. Therefore the defendants in error had no right to rely on his advice or suggestions in regard to a matter which was not within the apparent scope of his authority; and still less could they so rely on his advice when it was ■distinctly contrary to the contract stipulations. It was further expressly stipulated in the policy that ■“No agent has authority to waive or alter anything in this policy contained.” The policy is not unilateral. Since the insured have received, accepted and retained the policy, they are parties to it, although not signing it, and are presumed to know and accept all of its terms and conditions. Union Central Life Ins. Co. v. Hook, ante, p. 256. The insured, having agreed that the stipulation as to notice could not be waived or altered by an agent, cannot excuse themselves for non-performance of the contract as to notice to the company, by showing that they acted on the suggestion of the soliciting agent that they should not perform the contract as they had made it. In this conclusion we are sustained by numerous decisions in other states. We cite only a few of them. Carey v. Insurance Co., 84 Wis., 80; Smith v. Insurance Co., 60 Vt., 682; Porter v. Insurance Co., 160 Mass., 183; Walsh v. Insurance Co., 73 N. Y., 10; Kirkman v. Insurance Co., 90 Iowa, 457; Gould v. Insurance Co., 90 Mich., 302; Insurance Co., v. Heiduk, 30 Neb; 288; Ermentrout v. Insurance Co., 63 Minn., 305, 310.

We are aware that there are decisions to the effect, that conditions in respect to notice and proofs of loss, may be waived by an agent, notwithstanding a provision that no agent can change the same. Those-decisions are put npon the ground that such limitations on the authority of agents apply only to provisions relating solely to the formation and continuance-of the policy, and which are essential to the binding force of the contract while it is running, and do not apply to conditions which are to be performed after the loss has occurred, such as giving notice and proof' of loss. While we prefer to put the decision of this, case on the grounds, and in line with, the decisions, already stated, we think that we have made it sufficiently clear that the stipulation as to notice in this, policy, is of the very substance of .the contract in insurance of the kind here contracted for, and therefore could not be waived by any agent.

The court of common pleas erred in rendering judgment for the defendants in error, upon the conceded facts, and the circuit court erred in affirming the judgment of the court of common pleas. The-judgments of both courts are reversed, and the

Judgment is for plaintiff in error.  