(dissenting).
The majority opinion, in my judgment,, repudiates the settled law in this Circuit in its holding that this record reflects no genuine issue as to any material fact. It is my thought that genuine issues were developed as to whether Greyhound gave notice to Excess within a reasonable time, whether Excess was prejudiced by the delay, and whether Excess waived the giving of earlier notice.
*638Under an unbroken line of decisions of this Court, the granting of a summary judgment is proper only when the facts themselves are without conflict or reasonable men might not draw different inferences from such facts.1 We have further declared that summary judgment is justified only “when it is quite clear what the truth is”;2 and, based solely upon the general atmosphere of a ease involving laches, estoppel, limitations and other like defenses,3 we sent a case back for consideration by the fact-finder, citing many cases as justifying the action. And we held summary judgment improper “where motive, intent, subjective feelings and reactions, consciousness and conscience were to be searched, and examination and cross-examination were necessary instruments in obtaining the truth.”4 Under these established principles the judgment of the Court below ought to be reversed and the case should be heard on its facts.
The basic contract between the parties was that Excess insured Greyhound against liability exceeding $40,000—100,-000 limits in return for a premium Grey.hound had paid Excess. The rest of the policy dealt largely with machinery for carrying out that fundamental agreement. One of the provisions of that machinery was that Greyhound should notify Excess of any accident of such seriousness as would logically lead to a claim involving Excess. The policy required “immediate” notice; but, like so many provisions of the prolix mishmash which is the average insurance policy, the courts have had to decide that the word does not mean what the dictionary •says it means, and that any notice is sufficient if it is reasonable,—that is, if it is such notice as the average prudent man would give under the circumstances. There is no doubt about the holding of this Court on that point:
“It was the duty of the insured here to report the accident as soon as practicable. This does not mean that every trivial accident that occurred should be reported. An accident that an ordinarily prudent individual acting reasonably would consider, under all the circumstances, as inconsequential, and which would not afford the basis of any claim, the insured was not bound to report. * * * ‘It is not every trivial mishap or occurrence that the assured under such policy of liability insurance must regard as an accident of which notice should be given immediately to the insurance company, even though it may prove afterwards to result in serious injury.’ * * * That the accident in the case at bar appeared to be trivial was borne out by a preponderance of the evidence. * * * The question of whether or not the notice of the accident was given the insurance company in accordance with the provisions of the policy, was one for the jury. * * *” [Emphasis added.]5
In that case, the injury was to the roommate of Sammons, and he did not report the accident and the injury received by Crandall until more than fifteen months after it happened. It should be borne in mind that the Sammons case and all of the others which will be mentioned involved notice to the primary carrier, whose liability extended to every *639injury; while notice to Excess was proper only with respect to injuries which logically would be expected to exceed the limits mentioned.
As stated in the majority opinion here, the requirement of immediate notice really means notice “as soon as practicable”. In Callaway v. Central Surety & Insurance Corp., 5 Cir., 1939, 107 F.2d 761, 762, we held that this phrase meant within a reasonable time and that a notice which gave “ample time for a full investigation of the case” would be sufficient.
We gave the whole question full consideration in Young v. Travelers Ins. Co., 5 Cir., 1941, 119 F.2d 877, 879. There, the insured automobile and a motorcycle came into collision, resulting in the rider being injured and taken to a hospital, where he remained two months. Young, the insured, did not conceive that he could be held liable so he gave no notice to his insurer until he received a letter from a lawyer three and one-half months later. The trial Court held failure to give notice until then to be fatal, and we reversed, holding that the requirement “as written * * * is absolute in form and [that] its rigid terms have been by court construction, mitigated by importing into them, considerations of reasonable prudence * * What we said in that decision, 119 F.2d at page 880, concerning the necessity of showing prejudice on the part of the insured applies here:
“Here, speaking in terms of physical time, the notice could reasonably have been given sooner than it was. And, if it had been made to appear that prejudice resulted from the delay plaintiff’s case would have been made out. Upon the vital question here, whether it has been prejudiced, we think the record fails to support its claim and the district judge’s finding that it was. It is not found nor is it shown that by reason of the failure to give earlier notice there was a loss of evidence or any difficulty raised up in the way of preparing the defense. It is only found that ‘when you take the circumstances of the delay, it probably might cause some prejudice,’ in depriving the company of the opportunity to talk to the injured party before he had employed an attorney. This speculative or hypothetical prejudice is not the kind of prejudice at which the law looks in construing a clause of this kind. An obligation of the nature of that assumed by the insurer under this policy, cannot be wiped out and destroyed on such speculative grounds. The delay here viewed merely from the time standpoint was more than was reasonably necessary but it was in no sense excessive or gross. In its nature it was one to which the doctrine of prejudice vel non has peculiar application. There was no prejudice. The notice clause was not breached.” [Emphasis added.]
It might be noted at this point that Excess not only did not show or attempt to show that it had been prejudiced, but it appeared from its answers to Greyhound’s Requests for Admission that Excess peremptorily refused to recognize any liability. These answers showed that Excess did not, prior to such refusal, investigate the extent of the injuries of the plaintiffs in the Jones case, inquire concerning the names and addresses of the witnesses, examine the police accident report, discuss the case with counsel who were handling it to determine whether it had been adequately prepared for trial, or explore or determine settlement possibilities. The truth was that the case had been handled throughout by attorneys for the primary carrier and in the trial, for aught that appears to the contrary, every possible witness, was produced and every reasonable effort made to defeat or diminish recovery. It is important to keep in mind that the majority opinion ignores entirely the question of prejudice holding that prejudice exists in this case as a matter oí law or that prejudice need not be shown. *640In other words, the effect of the holding is that Excess rightfully repudiated all obligation under its contract regardless of the facts then existing and without consideration of them.
The case of Phoenix Indemnity Co. v. Anderson Groves, Inc., 5 Cir., 1949, 176 F.2d 246, 248, is particularly interesting in view of the fact that it arose in Florida and involved a Florida insurance contract. Phoenix brought a declaratory judgment action to determine .its liability in connection with an accident which was not reported until fifteen months after it occurred. The trial Court heard the evidence and found that the accident, which subsequently resulted in the amputation of a leg, “appeared of so trivial a nature that the defendant, using reasonable care could not have seen that the said claimant would have his leg amputated * * The Court further found that “said occurrence did not prejudice the investigation by plaintiff of the said accident nor will it be embarrassed in the defense of said cause in that the plaintiff has written statements giving the facts of said occurrence from the only two eye witnesses that were present at the time of the happening, namely, the employee of the defendant and the claimant.”
Finding that this notice was a reasonable compliance with the terms of the policy and quoting from our decision in the Sammons case, supra, we held:
“Whether or not the reasonably prudent person might have regarded the accident in question of such a trivial nature as to require the giving of no notice is not a question of law but one of fact over which the minds of reasonable men might differ.” [Emphasis added.]
I find it impossible to reconcile our holding there with what the majority is doing here. A notice to the primary carrier delayed fifteen months is likely to be more prejudicial in its effect than notice to the excess carrier delayed several times that period. At all events, the record shows that the first intimation Greyhound had of possible danger of recovery in excess of the primary coverage was American’s letter of Nov. 5, 1951 which Greyhound promptly transmitted to Excess. The majority says: We hold that the reasonable man of prudence would have, somewhere along the line, and not later than the filing of the amended declaration, perhaps much sooner, have given notice to Excess.” [Emphasis added.] Do not the emphasized words show that it is recognized that reasonable men might honestly differ as to what constitutes “reasonable notice under all of the involved circumstances” 6
*641In Home Indemnity Co. v. Williamson, 5 Cir., 1950, 183 F.2d 572, 576, this Court had before it a declaratory judgment action dealing with a situation involving failure to give notice. It rested its decision against the insurer both on the ground of failure to show prejudice and because it had waived the right to rely upon the tardiness of the notice: “The company denied all liability under the policy on the ground of the insured’s alleged failure to give notice of the accident to the insurer as soon as practicable. It interposed the delay in giving notice * * * but it did not show any prejudice that had resulted to it from Coop’s failure to give notice prior to the time that suit was filed against him; and the policy contains no forfeiture provision for failure to give notice ‘ “as soon as practicable” ’. This Court has said that ‘they are roomy words’ which ‘provide for more or less free play’.”
We further indicated that a liberal attitude should be followed in favor of declaring a waiver of the notice requirement so deep-seated is the universal feeling against forfeitures: “The failure of the insured to give notice of an accident may be waived by the insurer immediately after the latter has been fully informed of the occurrent facts; and the time necessary to constitute a waiver need take only a few minutes * * * We agree with the trial Court that the insurer waived the policy’s requirement as to notice. * * * ” Here, Excess delayed, not a few minutes, but two weeks (Oct. 15th to 31st) after being “fully informed of the occurrent facts” before announcing its decision to renounce its liability under its contract because of delay in notice. Under Williamson, supra, the question of waiver was one upon which reasonable minds might differ, considering the time element alone. Upon petition for rehearing we held that all of the questions in the Williamson case were for jury decision.7
Moreover, the record before us contains a very strong showing that Excess had encouraged Greyhound not to report claims unless there was a fair showing that the involvement of Excess was imminent. The reason for this is quite obvious. In my opinion, the question of waiver should have been submitted to the fact-finder along with the question of prejudice and the fundamental question of whether, in failing to give notice, Greyhound acted as a reasonably prudent person would have acted under the circumstances.
This idea is buttressed by the fact that Greyhound availed itself of its right, when sued in a declaratory judgment action by Excess, to bring in its primary insurer, American Fidelity and Casualty Co., as third party defendant. This whole complicated matter involved all three of these parties, and this is a case which makes a peculiar call to a court to dispose of all questions before one fact-finding tribunal in one trial. As shown in the majority opinion, Greyhound now *642stands in litigation with the primary carrier and at a distinct disadvantage as compared to the situation which would exist if Excess were also in the case. For this reason, and also for the reason that the majority opinion ignores or repudiates the decisions above discussed, I am compelled to dissent.
Rehearing denied: CAMERON, Circuit Judge, dissenting.. Hawkinson Co. v. Dennis, 5 Cir., 1948, 166 F.2d 61; Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 5 Cir., 1950, 181 F.2d 341; Dunnington v. First Atlantic National Bank of Daytona Beach, 5 Cir., 1952, 195 F.2d 1017.
. Chappelle v. Goltsman, 5 Cir., 1950, 186 F.2d 215, 218, and see also Whitaker v. Coleman, 5 Cir., 1940, 115 F.2d 305, 307; Williamson v. T.S.C. Motor Freight, Inc., 5 Cir., 1953, 203 F.2d 257, and Slagle v. United States, 5 Cir., 1956, 228 F.2d 673.
. Hyman v. Regenstein, 5 Cir., 1955, 222 F.2d 545.
. Alabama G. S. R. Co. v. Louisville & N. R. Co., 5 Cir., 1955, 224 F.2d 1, 5.
. Maryland Casualty Co. v. Sammons, 5 Cir., 1938, 99 F.2d 323, 324.
. Here is the chronology of what transpired with respect to the Jones case. Superficially it would seem that the delay of more than four years between the accident and the notice to Excess was inordinate. But consider that nearly three years elapsed between the bringing of suit and setting it for trial. This delay on the part of the Jones was not calculated to demonstrate any great confidence on their part.
Aug. 11, 1947—Accident occurred.
Dec. 11, 1948—Suit brought and summons issued in Jones case.
Oct. , 1950—New counsel took over for Jones and little later new declaration filed increasing amounts demanded.
Oct. 15, 1951—American wrote Greyhound case set for trial Nov. 5, 1951.
Oct. 15, 1951—Greyhound notified Excess by enclosing a letter from American which stated: “All I can say is that we do not believe that Excess will be involved.”
Oct. 31, 1951—Excess declined to assume any liability to Greyhound.
Was it reasonable that Greyhound notify Excess of its probable danger in the light of the meager information it had? Did the Jones case ever display such merit as to convict Greyhound of negligent or unreasonable delay in failing to evaluate it as beyond the limits of *641the primary carrier? Maybe reasonable men would answer those questions in the affirmative. The point is that they should be given the opportunity to do so.
. There are no decisions from this Court which are at war with those cited. Le-Sage v. Utilities Insurance Co., 5 Cir., 1942, 131 F.2d 536, and Dunn v. Travelers Indemnity Co., 5 Cir., 1941, 123 F.2d 710, were both Texas decisions, and went off on the peculiar law of Texas. Before a non-reporting insured could claim good faith and reasonable care he was obligated to make an examination of the facts in order that it might be said that he was of the sincere opinion that there was not a basis for claim. In these cases no such investigation was made, and this Court held, under Texas law, that this fact was fatal to the extended delay in giving notice in those eases.
The whole question of the effect of lack of showing prejudice and its effect on the question of notice is discussed in an annotation in 18 A.L.R.2d pp. 479, et seq. It is shown that there are cases on both sides of the question, but in every instance this Court is shown as in the forefront of those holding a showing of prejudice to be requisite.