I respectfully dissent. I feel that the majority has either ignored or eliminated a clause from the policy of insurance on which this action was brought. This clause is quoted in the majority opinion, in part. Another clause makes full compliance with the terms of the policy a condition precedent to an action upon it.
The parties had a right to iuelude this clause in the contract. Presumably, the form of the policy has been approved by the insurance commissioner. See Ark. Stat. Ann. § 66-3209.
There is no reason why such a clause is against public policy. It does not contravene any statute. Insurance companies are entitled to prompt notice of an occurrence which may result in liability on their part. They are also entitled to as many details of the occurrence as can reasonably be given. Obviously, a reason for such a requirement is that the company, which not only may be liable to a third party but is required to provide a defense to any action brought against its insured, should be given the background as expeditiously and thoroughly as reasonably possible. This is necessary in order that it may conduct a prompt and comprehensive investigation. Another reason is to prevent fraud. National Casualty Co. v. Johnson, 226 Ark. 737, 293 S.W. 2d 703. The requirement that the notice be in 'writing is for the purpose of eliminating the possibility of the common failures of the human memory and avoiding any question as to the nature and content of the notice.
I agree that substantial compliance with the notice requirement is sufficient.
The burden of showing compliance was on appellees. American Fidelity and Casualty Co. v. Northeast Ark. Bus Lines, Inc., 201 Ark. 622, 146 S.W. 2d 165. The burden of showing that no prejudice resulted was also upon appellee. Home Indemnity Co. v. Banfield Bros. Packing Co., Inc., 188 Ark. 683, 67 S.W. 2d 203.
It is well settled that clauses of this character are reasonable and valid, and that oral notice is not sufficient. Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S.W. 2d 640. This holding is supported by an overwhelming weight of authority, under which notice by telephone is also held insufficient. See 8, Appleman, Insurance Law and Practize, 47, § 47:37; 13 Couch on Insurance, 654. § 49:30; 45 C.J.S. 1284, Insurance, § 1057; 29A Am. Jur. 513, § 1400; Annot., 76 A.L.R. 23 @ 40 et. seq.; Annot., 18 A.L.R. 443 @ 459; Aetna Insurance Co. v. Durbin, 417 S.W. 2d 485 (1967, Tex. Ct. Civ. App.).
The insured, Guy H. Jones, was quite candid in his testimony. He stated that, after calling and notifying the soliciting- agent’s office by telephone, he did not do anything else, that he knew of, until after the summons was served on him in Coffman’s suit. He did not believe that he ever gave written notice of the accident. He “believed” that he referred Coffman’s letters to the insurance agent who sold the policy. He said that he “may have forwarded” the letters to the agent or “may have shown them to him.” His is the only testimony on the subject. Neither Perry, formerly a soliciting agent of appellant and a good friend and client of the insured, nor any of his employees testified in the case. No reason for their absence or unavailability appears. On this state of the record, I cannot find substantial evidence of substantial compliance. There is no evidence of nonprejudiee. I would reverse and dismiss.
I am authorized to state that Brown, J., joins in this dissent.