The opinion
McPHERSON, Circuit Judge
(dissenting). I agree with nearly all that has been so well said by Judge WOOEEEY, but I regret to find myself obliged to disagree at a "vital point. In my opinion the company was entitled to binding instructions, for the reason that the wife and the’ niece should be conclusively charged with knowledge of the company’s provision for notice, and should bear the consequence of their failure to comply until nearly a year thereafter. The insured was injured in February, 1914; in September his wife and his niece received and read the.company’s letter concerning the renewal of the policy, the letter bearing the words in large type “Notify the Company at Once in Event of Accident,” and they acted on the letter by paying the premium and thus extending the policy for another year. The insured did not die until August 30, 1915, but no notice of the *72 accident was given until September 4, a year and a half after the fall, and almost a year after the wife and the niece had learned that prompt notice of the injury was required. I do not see how a court could permit a jury to find that they did not know the contents of the letter, when concededly they opened it and read it and sent a check to the company in compliance with its contents, even referring to the policy by its number and the name of the insured. Those who receive and act upon a writing must be held to know its terms, just as a man cannot be allowed to say that he looked, but did not see a train, although he stepped directly in front of a moving car.
Moreover, no one can doubt that the wife and the niece had a- right to make the payment, although they were assuming to act for the insured without his express authority, and no one can doubt that they would have been justified also in giving notice of the accident on his behalf. The closeness of the family relation is a sufficient reason, coupled with his inability to act for himself. But if the wife and the niece had these implied rights, I think they were impliedly bound to discharge the corresponding duties. If they stood in the shoes of the insured, and were protecting the interest that he could not protect for himself, why were they not bound by the same duty that would have bound him—of course so far only as their actual or presumed knowledge extended? In a word, the evidence seems to me conclusive that they knew what was conspicuously before their eyes, and since they knew it I think they were bound to act thereon. No doubt they had a reasonable time to act after the knowledge reached them, but under the facts of this case a year is not reasonable, and I think the court should have said so as a matter of law. '