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MEIERDIERCK v. MILLER (ET AL. (01/12/59)

January 12, 1959

MEIERDIERCK
v.
MILLER (ET AL., APPELLANT).



Appeal, No. 245, Jan. T., 1958, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1955, No. 3851, in case of Victor Meierdierck v. Herman Miller et al. Order affirmed.

COUNSEL

Henry T. Reath, with him Duane, Morris & Heckscher, for appellant.

Theodore R. Mann, for plaintiff, appellee.

Jerome L. Markovitz, with him S. Robert Levant, and Markovitz, Stern & Shusterman, for defendant, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Cohen

[ 394 Pa. Page 485]

OPINION BY MR. JUSTICE COHEN.

The appellee, Victor Meierdierck, plaintiff in a trespass action recovered a judgment against Herman Miller. This action was then taken against the Eureka Casualty Company, garnishee, to collect the judgment, Miller being an assured of Eureka. Eureka refused to pay the judgment alleging they had not received written notice of the accident in accordance with the terms of the policy which provided that: "When an accident occurs written notice shall be given by or on behalf

[ 394 Pa. Page 486]

    of the insured to the company or to any of its authorized agents as soon as practicable." This is not an unusual provision. Most, if not all, policies of liability insurance require notice of the accident within a certain time as a condition precedent to the imposition of liability on the part of the insurer.

The testimony disclosed that the accident occurred October 25, 1955, and that the assured, Miller, wrote and mailed a notifying letter to Eureka on October 27, 1955. The letter was addressed to the Chester Avenue office of the company, where they had been located prior to their removal to Walnut Street shortly before the accident. The garnishee-insurance company, questioned the mailing of the letter and introduced evidence that the letter was not received. When the issue was presented to the jury the court charged: "If you find that the notice was not given by Mr. Miller, and if you find the inference and presumption are not sufficient to convince you by a fair preponderance of the evidence that that letter was mailed and received, then, of course, you should find for the defendant (garnishee)." The jury did find for the defendant-garnishee, and the lower court granted motions for a new trial from which order Eureka appealed.

It is well established that the assured claiming rights under an insurance policy has the burden of proving compliance with the terms and conditions. Unverzagt v. Prestera, 339 Pa. 141, 13 A.2d 46 (1940). The Eureka policy requiring that notice be given "as soon as practicable" is a condition precedent to the imposition of liability. Failure to comply releases Eureka even though no prejudice may have resulted. Ross v. Mayflower, 338 Pa. 211, 12 A.2d ...


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