Stevens

The plaintiff in error issued its policy of insurance to the defendant in error, insuring it against loss on account of damages for bodily injuries or death suffered by any of its employés through accidental causes. While the policy was in force, and on or about July 19, 1909, one Merrill, an employé of the insured, was injured. On October 28, 1909, Merrill commenced an action against the defendant in error to recover damages. The .insurance company refused to defend the action, and denied its liability on the policy, for the reason that notice of the accident had not been given it, in compliance with the provisions of. the policy, which required that, upon the occurrence of an accident, the assured should immediately, “and at the latest within ten days,” given notice in writing of such accident to the insurance company. Merrill recovered a judgment against the defendant in error, and thereupon the latter brought its action against the insurer to recover on the policy. The insurance company in its answer alleged the failure of the insured to give the notice required by the policy. Under the instructions of the court that there could be no recovery against the defendant in the…