
    HELLER v. STANDARD ACC. INS. CO.
    Ohio Supreme Court.
    No. 20584.
    Decided March 14, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    625b. — INDEMNITY INSURANCE — 851. Notice.
    1. "Where, under indemnity policy requiring assured to give immediate written notice of claim and forward to company every summons or other process served on him, suit was commenced on Dec. 26, 1922, and accused, as excuse for non-compliance, claimed impossibility of knowledge of claim and suit until last of April, 1923, because of absence from home and subsequent illness, term “immediate” held to mean action within reasonable time under circumstances.
    2. Assured must use due diligence in ascertaining existence of claim or suit.
    191. BURDEN OF PROOF.
    Upon issue of impossibility of performance, or exercise of due diligence in complying with terms of policy, burden of proof rests upon assured.
   JONES, J.

1.A policy of. indemnity against liability to others resulting from accident contained a condition requiring the assured to give- immediate written notice of any claim made on account thereof, and in case of suit brought, to “immediately forward to the company every summons or other process served on him.” Suit for recovery of damages was instituted and summons served at the assured’s residence on December 26, 1922. As an excuse for noncompliance with the condition of his policy requiring the immediate forwarding of the process, the assured- claimed want of and the impossibility of knowledge of the claim and suit until the latter part of April, 1928, because of his absence from home and subsequent illness confining him to his house until that time. HELD: The term “immediate,” contained in the policy, means action taken on the part of the assured within a reasonable time under the circumstances of the case. Travelers Ins. Co. v. Myers, 62 Ohio St., 529, approved- and followed.

2. The assured cannot justify his delay in failing to comply with-the policy condition, by claiming want of1 and impossibility of knowledge of such claim or suit if he has failed to use due diligence in ascertaining their existence.

3. Upon the issue of his impossibility of performance, or of his exercise of due diligence in complying with the policy condition, the burden of proof rests upon the assured.

(Day, Allen, Kinkade, Robinson and ■ Matthias, JJ., concur.)  