(Concurring.) I am in agreement with my associates that there must be a reversal. For reasons -expressed herein, I am not in accord with their views that the case should be remanded for additional evidence and findings.
The accident in question occurred in May, 1962. Suit was brought by Mrs. Johnson, in the United States Court on February 5, 1965. *524Plaintiff, Insurer, received no notice of the accident within the above period.
In the case of Houran, Admr. v. Preferred Acc. Ins. Co. of N. Y., 109 Vt. 258, 272, 195 A.253, 259, this Court made the following observation: “The rule established by the weight.of authority is that where, by the terms of the insurance contract, a specified notice of accident, given by or on behalf of the insured to the insurer, is made a condition precedent to liability on the part of the latter, the failure to do so will release the insurer from the obligations imposed by the contract, although no prejudice may have resulted.” See Springfield Freeze Locker v. Wiggins, 115 Vt. 445, 449, 450, 63 A.2d 182; Brown v. Maryland Casualty Co., 111 Vt. 30, 32, 11 A.2d 222. To constitute the giving of notice a condition precedent a specific forfeiture clause is unnecessary. Houran, Admr. v. Preferred Acc. Ins. Co., of N. Y., supra, page 273. See, Annotation, 18 A. L. R. 2d, page 454, and cases cited.
In Nelson v. Travelers Ins. Co., 113 Vt. 86, 98, 30 A.2d 75, it was held that “. . . the requirement of written notice is of the essence of the insurance contract and failure to comply with it, unless, waived by the company or otherwise set for naught, voids any liability of the company under the policy.”
By the acceptance of the policy, the defendants agreed that following an “occurrence” written notice was to be given the insurance carrier, or any of its authorized agents “as soon as practicable.” This is not an unreasonable requirement. .Here, the “occurrence” relates to the event upon which the defendants’ liability is alleged to exist — that is, the accident that befell Mrs. Johnson.
The object of the clause requiring the insured to give written notice of any accident is to place the insurer in the position of making its preliminary investigation, and defending the action in face of evident disadvantages that the notice manifestly was intended to prevent. Brown Materials Co. v. Pacific Auto Ins. Co., 52 Cal. App. 2d 760, 127, P.2d 51. An investigation made long after an accident has occurred, as everyone knows, is done with great difficulty, and oftentimes with little promise of success
In Boyer v. American Casualty Co. (1964) 332 Fed. 2d 708, 710, the Court held that under Vermont law notice given by an assured more than two years after an accident was untimely and breached the policy condition requiring notice of the occurrence as soon as practicable. In the opinion the Court made the following pertinent statement:
*525“The insurer has contracted to defend against groundless suits and is entitled to notice of a claim, be it .good or bad. If the insured takes the position that it need not notify the insurer because the suit is so obviously frivolous in spite of notice provision, he takes the risk of having to defend it himself unless the insurer waives the notice provision.”
The fact that the defendants may have had a reasonable and bona fide doubt as to the existence of any injury, or of any liability, cannot be used to deprive the insurer of its contractual right to have a written notice by the defendant as soon as practicable — which means within a reasonable time’ under all the circumstances. Malloy v. Head, 90 N. H. 58, 4 Atl. 2d 875, 879. What the defendants’ belief may have been is not the test of their duty to report; it is the existence of the known fact of an accident which involved them. Of this, defendants had knowledge and failed to comply with the conditions of the contract of which they were a party. If the defendants knew facts which might have induced a belief on non-liability, it was their duty to disclose them to the insurer. If the insurer then makes an error of judgment, it is the fault of the insurer and not of the assured.
In an action for a declaratory judgment to determine liability under an insurance policy, the burden of proof rests where it would have rested if the insured had brought an action on the policy. American Fidelity Co. v. Hotel Poultney, 118 Vt. 136, 138, 140, 102 A.2d 322. The burden of proof was cast upon the defendants to demonstrate a compliance with the policy provision requiring them to give notice to the insurer of the occurrence “as soon as practicable.” Due diligence has not been shown.
Following a recitation of the facts to the effect that no notice was given, by finding No. 12, the Chancellor concluded: “There was no evidence that the reporting of the occurrence under the circumstances when it was reported was not “as soon as practicable.” This is equivalent to a positive finding’ that a report of the accident was made “as soon as practicable.” The facts refute this conclusion. The absence of notice is not disputed. It is my view that the judgment order is lacking in sound, factual and legal support.
I would reverse and remand for the entry of an appropriate judgment order in favor of the plaintiff.