North American Accident Insurance v. Watson , 6 Ga. App. 193 ( 1909 )

Hill, 0. J.

Watson sued the North American Insurance Company in a justice’s court for $100, claimed as a sick benefit under a policy issued to him by the company. He obtained a judgment for the full amount, and, on appeal to the superior court, the jury found a verdict in his favor for this amount. The company filed a motion for a new trial, which was. overruled. The insurance company defended on the sole ground that the plaintiff had forfeited his right to the sick benefit claimed by him under the policy, because of his failure to comply with the following express condition thereof: “Written notice of any injury, fatal or non-fatal, or of any sickness for which claim can be made, shall be given to the company at its home office at Chicago, within ten days of the occurrence of the accident or commencement of the sickness, and failure to give such written notice within ten days from the date when it becomes possible to give such notice of injury, or, in case of sickness, within ten days from date of commencement of sickness, shall invalidate any and all claims under this policy.” The company admitted that it had received written notice from the plaintiff of his sickness, but claimed that this notice had not been received by it, either at its home office in Chicago or elsewhere, within ten days from the commencement of the plaintiff’s sickness, as required by this stipulation of the policy. The plaintiff replied to this defense by the allegation that he had been providentially prevented from giving the written notice within the ten days, because of mental and physical incapacity caused by his sickness; and that, after he had recovered sufficiently to give the notice required by this condition of his polic3r, he did so with all reasonable and proper diligence. By an amendment to his petition he alleged that the company had waived his failure to give the notice within the time stipulated, by sending to him, through its agent, a blank form for the purpose of having him prepare and send the notice to it, which he did as soon as he received the blank. The question for decision arises on the construction of this condition of the contract.

Some authorities hold, that where the language is plain and unambiguous, .and mandatory in its character, its terms can not be enlarged by judicial construction, but demand strict compliance with the letter of the contract, and that liability can not in any event survive a failure to comply literally with its requirements in this respect. Gamble v. Accident Assurance Co., 4 Ir. R. C. L. 204; Patton v. Employers’ Liability Assurance Corporation, 20 Law. Rep. (Ir.) 93. Other authorities take a more liberal view, and hold that stipulations as to time in which notice of injuiy, loss, or sickness, for which indemnity is claimed, is required to be given, are not necessarily and in every instance to be literally complied with in order to prevent a forfeiture of the policy. Unless these provisions are expressly stipulated to be conditions precedent, they should be treated as conditions subsequent and given a liberal construction in favor of the beneficiary of the policy, to prevent a forfeiture. The condition that notice shall be given operates upon the contract of insurance only subsequently to the fact of loss, injury, or sickness, and it should, therefore, receive a liberal and reasonable construction in favor of the beneficiary under the contract. Niblack on Accident Insurance and Benefit Societies, §417; Woodmen Accident Association v. Pratt, 67 Neb. 673 (87 N. W. 546, 55 L. R. A. 291, 89 Am. St. R. 777). It is settled by an overwhelming weight of authority that where the failure to give prompt notice is not due to the negligence of the insured or the beneficiary, but such compliance has been prevented and rendered impossible by an act of God, this would furnish a sufficient legal excuse for the delay in giving the stipulated notice; and this doctrine has been applied in cases in which a specified time for the giving of the notice has been fixed by the contract. The theory of these cases, as stated by Cooley (4 Briefs on the Law of Insurance, 3462) is that “it could not have been in the contemplation of the parties that if the insured, who was required to give the notice, was unable to do so by reason of the very accident against which indemnity was given, he should therefore lose such indemnity through no fault of his own.” Reed v. Loyal Protective Asso. (Mich.), 117 N. W. 600, 37 Ins. Law Jour. 1024; Brown v. Fraternal Acc. Asso., 18 Utah, 265 (55 Pac. 63); Comstock v. Fraternal Accident Asso., 116 Wis. 382 (93 N. W. 22); Hayes v. Continental Casualty Co., 98 Mo. App. 410 (72 S. W. 135); Insurance Company v. Boykin, 12 Wall. 433 (20 L. ed. 442); Woodmen Accident Association v. Pratt, supra. The Supreme Court of Georgia, in the ease of United Benefit Society v. Freeman, 111 Ga. 355 (36 S. E. 764), where the condition as to notice to be given was expressly stipulated to be a condition precedent, clearly recognizes that impossibility of performance by the insured would be a sufficient legal excuse for a failure to give the notice within the time required by the terms of the policy. In that case the court holds, however, that the evidence was not sufficient to support the finding that it was impossible for the plaintiff to give the notice to the society within ten days from the date of his injury.

.We deduce the proposition from the authorities cited that where the insured is suddenly stricken with some disease of the brain which renders him unconscious and makes it impossible for him to give to the company, within the time stipulated, written notice of his sickness, this fact is legally sufficient to excuse him from a compliance with this condition of the policy during the existence of such disability. We are also of the opinion that, although the time in which the insured should give to the.company written notice of his sickness is fixed, if the sickness itself makes a literal compliance impossible, giving the notice required within a reasonable time after it becomes possible to do so, or, within the time stipulated after the cause preventing prior compliance has ceased to exist, would be sufficient to prevent a forfeiture. McFarland v. U. S. Mutual Accident Asso., 124 Mo. 204 (27 S. W. 436); Woodmen Accident Association v. Pratt, supra. The questions of the sufficiency of the excuse offered, and the diligence of the beneficiary in giving the notice after the removal of the disability, are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case.

The material facts in the case now under consideration are not controverted. On July 20, 1907, the insured, while walking on the streets in Macon, was suddenly stricken with some disease of the brain which rendered him unconscious. He was taken to a hospital, where he remained under constant treatment for sixteen days. During the first five days he was totally unconscious; in the remainder of the time he had lucid intervals, but, according to the testimony of his physician, during the entire sixteen days he was incapable of transacting any business. On August 5 he was sufficiently restored to be removed to his home, some ten miles in the country. According to his own testimony, as soon as he arrived at his home, he sent for his family physician, and on the next day after his arrival he secured his policy, with a blank copy of the notice required to be given of his sickness, and asked the physician to aid him in making it out by filling in the statement to be made as to his condition by his attending physician. The doctor suggested that the physician who had attended him while he was in the hospital in Macon was the proper one to make this statement, and, acting on this suggestion, the blank was enclosed and sent through the mail to this physician at Macon, with the request that he complete it and return it to the insured. The insured further testified, that he did not hear from the physician in Macon for some time, and he thereupon wrote him a letter asking the cause of the delay, and received a reply stating that the blank notice had been misplaced. It does not appear definitely in the testimony how long the insured waited before writing this second letter to the physician in Macon, but it is fairly deducible from the testimony that he did wait for several weeks; for he testified that immediately on hearing from the physician, he wrote to the agent of the company at Atlanta, on the 29th of August, requesting him to send him another blank notice, which notice he received on the 30th of August, and that he thereupon filled out the notice and mailed it to the company at Chicago, and it was received by the company on the 9th of September. It therefore appears that the company did not receive the stipulated notice for a period of fifty days from the time the insured was first stricken with the sickness for which he claimed the benefit. It is clearly established by the evidence that he was mentally and physically incapable of transacting any business or complying with the condition of the policy as to the notice during the first sixteen days of his sickness, and while he was in the hospital in Macon, but it does not appear that this disability continued to exist after his arrival at his home on August 5. It does appear, from his own evidence, that immediately on his arrival at home he realized the importance of sending the notice to the company, and undertook to do so. It is reasonable, therefore, to infer that he was mentally and physically capable of complying with this stipulation of his contract from the time of his arrival at home on August 5 to the time when he did actually comply with it by sending the notice which was received by the company on September 9. Whether he exercised all reasonable diligence during this time in complying with the requirements of his policy would be a question for determination by the jury, if, under his own testimony, there was any doubt on the question. It is true, lie states generally that for the entire ten weeks of his sickness he was unable to attend to business, and was really not able to attend to business when he did return to his work on September 28; but this general conclusion of his can not overcome the specific facts stated by him showing that he was mentally and physically able to attend to the giving of the notice to the company under his contract, for, as a matter of fact, he did send the' notice to his physician at Macon on August 6. No reason appears why he could not have sent this notice directly to the company. It does not appear that any special form of notice was necessary. The condition of the policy simply required that written notice of his sickness should be given to the company at Chicago. It seems, too, that he was guilty of laches in waiting for at least three weeks to hear from the physician in Macon before writing to him to know the cause of the delay. He does not give any reason why it was necessary for him to wait so long a time. The law imposed upon him the burden of showing, by a preponderance of the evidence, that he was incapable, mentally or physically, of complying with this requirement of his policy from the time that he was taken sick to the time when he did actually comply with it by sending the notice. It was his duty to show, to the satisfaction of the jury, that he was incapable, on account of his physical or mental condition, of giving this notice, either within ten days after his disability to do so had been removed, which was the measure of diligence agreed on by the parties to the contract, or, at least, that in the exercise of all reasonable diligence he could not have done so sooner than when he did actually give the notice as required by his contract. The defense set up in this case can not be regarded as purely technical. There are substantial reasons why notice Oi the commencement of the sickness within the time stipulated, ox, at least, within a reasonable time thereafter, would be important to the company for the purpose of determining its liability for the benefit claimed. While this court is reluctant to .adopt any construction of an insurance contract which would deprive the insured of the benefits of his policy, and will not do so unless convinced that such construction is demanded by the law and the evidence, under the facts of this case we are clearly of the opinion that the plaintiff not only failed to carry the burden which the law imposed upon him, but did, by his own testimony, affirmatively show that he failed to comply with the plain, unambiguous terms of his contract without a sufficient legal excuse.

There is no evidence whatever that the company waived a performance by the plaintiff of this condition of the contract. The only evidence relied upon by the plaintiff as showing a waiver is the fact that the company’s agent at Atlanta sent him a blank for the purpose of giving the notice. But it is undisputed that the agent did not know that the plaintiff had been sick, or that he had not given the notice as required, when he sent the blank in compliance with his request. In his letter to the agent asking for a blank, the plaintiff did not inform him even that he had been sick, and in the letter there was no intimation given to the agent that the plaintiff had forfeited the benefits of his policy by a failure to comply with any of its conditions. Judgment reversed.