Amici curiae have appeared in this action in support of the petition for a rehearing and urge that the opinion of this court might be construed as laying down a general rule to the effect that where a policy of indemnity insurance provides that the insured give the insurer immediate notice of an accident and also send to it copies of any summons and complaint served upon him, the immediate notice of the accident may be dispensed with and that the sending to the insurer of the summons and complaint served on the insured would be a sufficient notice in all cases, contrary to the rule laid down in the case of Aronson v.Frankfort etc. Ins. Co., 9 Cal.App. 473 [99 P. 537]. No such attempt was made in this opinion to establish any such general rule. An opinion of an appellate court should be read and construed in the light of the facts of the case before it.
The Aronson case holds that the insurer was entitled to notice of the accident immediately or within a reasonable time after its occurrence. What is a reasonable time within which an act may be performed depends upon the facts of a case. In the instant case the named insured was killed, and her driver, Forest Bayliss, who became the insured under the terms of the policy, was injured in the accident. No living person, except the insurer and its agents, knew of the existence of the policy until after the opening of Katie Bachman's safe deposit box some time after her death. The action against Bayliss was filed shortly thereafter, the exact time intervening between the discovery of the policy and the institution of the suit not appearing in the record. Notice was immediately given the insurer of the filing of the suit by sending to it the copy of the summons *Page 487 and complaint, and it commenced its investigation of the accident without raising the question of the failure to give any prior or additional notice. The record fails to disclose that appellant's disclaimer of liability was based in whole or in part on the failure to give any other notice of the accident than that contained in the summons and complaint.
[7] Under these circumstances we have concluded that the notice of the accident was given within a reasonable time and that appellant waived the right to receive any other or further notice than the one given it. (J. Frank Co. v. New AmsterdamCasualty Co., 175 Cal. 293 [165 P. 927]; Employers' LiabilityAssur. Corp. v. Chicago etc. Coke Co., 141 Fed. 962 [73 C.C.A. 278]; Rosenbloom v. Maryland Casualty Co., 153 App. Div. 23 [137 N.Y. Supp. 1064]; Tozer v. Ocean etc. Corp., 94 Minn. 478 [103 N.W. 509].)
The petition for rehearing is denied.
Jennings, J., and Lamberson, J., pro tem., concurred.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 4, 1931.