I am of the opinion that the evidence raises an issue of fact which should have been submitted to the jury, as to whether the injury sustained from the accident resulted in "immediate, continuous, and total disability." The policy, when construed as a whole, clearly insures against injury from an accident of the kind suffered by the appellant. The original opinion on file in this cause, to my mind, reaches the proper result or conclusion as to appellant's right to recover for total disability, and to have the issue properly submitted to the jury.
The majority of the court have decided that the evidence affirmatively shows that notice of the accident was not given in proper time. The term "reasonably possible," as used in the policy, and as same is applied to notice of the accident, means only that notice of the accident must be given within a reasonable time after its happening. To determine what is a reasonable time, we are required to look to the particular case, viewing it in the light of all the attending circumstances. If, however, the term "reasonably possible," as used in the policy, should mean a period of time of shorter duration than prescribed by R.S. 1895, art. 3379, as amended by Acts 1907, p. 241, then the stipulation as to notice is void. Maryland Casualty Co. v. Hudgins, 72 S.W. 1047; Ætna Life Insurance Co. v. Griffin, 123 S.W. 432; Royal Casualty Co. v. Nelson et al., 153 S.W. 674.
By the statute, any stipulation requiring notice, which, when viewed in the light of all the circumstances of the case, is not reasonable, is void. The policy provides, however, as a saving clause, that any limitation stipulated for, which contravenes a statute of the state where the policy is issued, shall be ignored, and the shortest period of limitation allowed by statute shall become a part of the policy. That part of article 3379, supra, which is applicable to this cause, reads as follows: "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable, and any such stipulation fixing the time within which said notice shall be given at a less period than ninety days shall be void." It is then expressly provided that the time for giving notice of the accident must be reasonable; also, any stipulation requiring notice to be given within a less period of time than 90 days shall be void. The 90-day provision is intended to prevent any stipulation in the policy of a shorter period, whether reasonable or unreasonable. The intent and purpose of the statute is clearly to the effect that the stipulation as to time of giving notice must be reasonable, and necessarily, as to what is a reasonable time, must be considered in the light of the facts of each case. The stipulation must be reasonable, even though the time of giving notice may exceed the period of 90 days. Notice of an accident, however, is not required until assured, by the exercise of ordinary care, has first ascertained that the injury complained of is the result of such accident. Phillips v. U.S. Benevolent Society, 120 Mich. 142, 79 N.W. 1; People's Mutual Accident Association v. Smith, 126 Pa. 317, 17 A. 605, 12 Am. St. Rep. 871.
In the light of the evidence, I contend an issue of fact was raised, which should have been submitted to the jury upon the question of the time of the giving of the notice of the accident. Appellant's evidence, in part, is as follows: "I again saw Dr. Vinsant, and explained to him that my trouble was getting worse and worse all the time, rather than better. I told him I was growing no better, but that I was growing speedily worse, and in that conversation I told him what Dr. Camp had previously told me, that it was rheumatism, and that I had about made up my mind to go to either Mineral Wells or to the Gill Wells at Dallas for the purpose of taking a course of baths, and asked him what he thought about it, and he told me he thought it would be a good idea, that perhaps the baths would relieve the trouble to some extent. He rather at that time insisted on my burning my back. I told him I had made up my mind that I was going to the Wells for the purpose of taking the baths, and would leave within a day or two, and I did not care to take the burning then. He then advised me to go on and take the baths, and if the baths afforded me no relief that after I returned to Pecos he would try the burning process, by burning my back, to see what relief I could get from that. So some time in April, I do not remember just when — my recollection is about the 12th or 14th, somewhere — I did go to Dallas, expecting to take the baths at the Gill Wells, which I did while I was there; but on reaching Dallas I was suffering so intensely I at once called in a physician — called in Dr. E. A. Means of Dallas. He made what I thought a pretty thorough examination. I do not remember that he told me, after he made his examination, just what the trouble was, or, rather, he said that he was in doubt as to what the trouble was. I then told Dr. Means that it was my intention to call in another physician or two, that there was something radically wrong with me, and I wanted to know what it was, and, if there was any relief, I wanted it. He then requested me not to call in another physician under three or four days — said, `You give me three or four days in which to diagnose your case, and then you may call in as many physicians as you please.' I granted his request. So at the *Page 336 end of the third or fourth day he told me that he thought my trouble was due to nerve tumor, or rather to a fractured or ruptured nerve. He told me he did not regard the trouble as being at all serious, and that in his opinion in the course of a month or six weeks I would return home a sound man, and he began treating me, but at the end of the month or six weeks I was in worse condition in some respects; that is, so far as my injury was concerned, I was in worse condition than when I went to Dallas. At the end of six weeks from the time I went to Dallas, my left limb showed signs of giving down, and I called his attention to it, and it kept getting worse, and finally he told me: `I am now convinced that your injury is of a more serious character than I first thought; your limb shows signs of giving down, and in that event it may be twelve or eighteen months or possibly two years, before you recover the use of your leg.' This date was about the last of June or the first of July, 1910. I cannot remember positively as to the date, but it was about the last of June or the first of July. Then it was that I realized for the first time the seriousness of my condition, and I gave notice of the injury a short time after — I think only a few days after. When Dr. Camp advised me that I had rheumatism, I supposed it was rheumatism, and took treatment for rheumatism. Yes; the notice which I gave to the company was in writing. The examination made by Dr. Means at Dallas, about which I have testified, was first made in April; but it was the latter part of June or first of July, 1910, when he advised me. I had never been advised prior to this time, and had never been apprised, prior to this time, that the accident really was the cause of the trouble. Understand me, I personally attributed the injury to the accident at the time, myself; but the doctors seemed to take different views, and so advised me, and when they advised me differently I certainly believed what they said. I have virtually stated heretofore, gentlemen, the reason why I never gave notice to the company any sooner than I did. The reason was, at first it was a case of `I will be better tomorrow and will be all right next week,' and it went along that way for several weeks, until the pain became so severe that I thought it might be best to consult a physician with reference to my trouble. Dr. Camp, of this place, was the first physician that I consulted, and he told me I had rheumatism. When he told me that, I thought possibly I might be mistaken about my trouble being the result of the accident. Later on I consulted Dr. Vinsant, as already stated, and he stated he thought my trouble was due to a slight wrench or twist of the lumbar spine or muscles of the back. He did not regard it as being serious, and thought I would be all right in a little while, by using the hot applications and wearing the abdominal support. Later on I consulted another physician, an osteopath in El Paso. He said that the injury was slight, and told me that treatments that he had given me would cure the trouble without further treatment, he thought, and I supposed, when I left El Paso, that I was practically well, from what he told me. I was still suffering pain, of course. Later on, I consulted Dr. Vinsant again, and he was still of the opinion that the trouble was due to a slight wrench or sprain, and advised me that wearing an abdominal support constantly would in all probability relieve the trouble. So I naturally supposed the trouble was not serious, and did not know how serious it was until a month or six weeks after I had been taking the treatment at Dallas, under Dr. E. A. Means. When my limb began to show signs of giving down, he advised me that the injury was of a more serious character than he first thought; that in all probability, if my leg went down, it would be eighteen months and probably two years before I recovered the use of it. Then it was that I realized the seriousness of my injury, for the first time. A short time after that I gave notice to the defendant. Understand me, that personally I always attributed my injury or hurt to that accident; I thought it might be, but did not know positively; I had no means of knowing, until I was advised by a physician ultimately, that it was that. One doctor pronounced it rheumatism, and another pronounced it a sprain, and first one thing and another."
It appears from this evidence that the appellant did give notice as soon as he ascertained that the injuries were caused by accidentally stepping into the hole. If I am correct in the above views, appellant has complied with the requirements of the policy, and did give notice within a reasonable time after he ascertained that the injuries were the result of the accident. He was not even required to resort to the protection clause of the statutes, as to the time of giving the notice of the accident if the construction which I have given to the policy is correct, and which must have been the one understood by the parties when they entered into the contract. It is a well-established general rule that a policy should be liberally construed; that all its provisions, conditions, and exceptions, which in any way tend to work a forfeiture, should be construed most strongly against the insurer, for whose benefit they are inserted, and most favorably toward the insured, against whom they are meant to operate. A policy should be given a fair, business-like, common-sense interpretation. To construe it literally would be to give a meaning different from that which was understood by the parties. An insured should not be required to give notice of an accident, without there was a resultant injury of a substantial nature, sufficient to justify a claim for compensation under the policy. On the other *Page 337 hand, an insured should not be required to give notice to the insurance company of an injury which he had not ascertained was the result of the accident. An honest person is to be commended, rather than condemned, in not giving notice of an accident, which under ordinary circumstances, is not thought likely to result in such an injury as to justify him in making a claim against an accident insurance company. The giving of notice of every accident, regardless of its trivial nature, before ascertaining whether the accident is going to result in causing a substantial injury, does not appeal to me to be just, and I do not think it was even contemplated by the parties, when they entered into the contract of insurance, that notice of every trivial accident should be given to the company.
Primarily, then, the question as to whether notice has been given within a reasonable time is for the jury. To become a question of law, for the court's decision, the delay in giving the notice must be such that by reason of its duration it is clearly unreasonable. In Phillips v. U.S. Benevolent Society, supra, it was held that, where a policy requiring notice of an accident to be given within five days thereafter, a notice given within five days after the assured ascertained that the accident was the cause of the injury was sufficient. In People's Mutual Accident Association v. Smith, supra, it was held that notice of an accident causing the loss of the sight of one eye need not be given until it has become reasonably certain that the sight of the eye has been lost, the claim being for such loss. Notice, then, of an accident should not be compulsory to a recovery until it is first determined that the accident is the cause of the injury. In the instant case I think it clearly appears from the record that the assured did give notice of the accident and of the injury within a reasonable time after it was determined that the accident was the cause of the injury. Common sense and reason should not and would not require the giving of notice at an earlier date.
As to whether the assured was acting as a prudent man in the determination as to whether or not the accident was the result or cause of the injury is a question for the jury, and comes clearly within the rule requiring issues of fact to be submitted to the jury.
If I am correct in the views above stated, then by the very terms of the policy it follows that a cause of action would not arise until notice had been given, and it appearing from the record that two years had not elapsed from the time that appellant gave notice of the accident and resulting injury before bringing his suit, the plea of the statute of limitation would be unavailing.
For the reasons indicated, I am of the opinion that this cause should be reversed and remanded for a new trial.