Conley v. Washington Casualty Insurance , 93 Me. 461 ( 1900 )

Wiswell, J.

The plaintiff’s intestate was the holder of a certificate issued by the defendant corporation under date of June 24, 1895, which provided for the payment to him, subject to many conditions and qualifications, of the sum of $10 a week for each week’s disability caused -by accident or disease.

He had been the holder of another certificate, since April, 1894, issued by the same company, which upon June 24, 1895, was surrendered and the new one of that date taken in exchange. The later certificate was in some respects more beneficial to the company than the first one.

On June 18, 1895, the deceased suffered a hemorrhage of the lungs and shortly after gave notice of his disability and its cause to the company, upon one of its blanks furnished for the purpose. This notice was received by the company on June 26.

He seems to have furnished evidence, satisfactory to the company, of a disability which continued until July 31, 1895, because for that period of time, the company has since paid the weekly benefit.

The deceased died on November 28, 1895. In this action his administrator seeks to recover the stipulated sum per week from July 31, 1895, to the time of his death. The case comes to the law court upon report. Various objections are urged by the defendant to the maintenance of the suit.

According to the strict terms of the certificate, upon which the suit is brought, the plaintiff's intestate was not entitled to the weekly benefit provided therein, because disability caused by accident or disease within thirty days of the date of the certificate was excluded from its provision. But we do not regard the certificate issued June 24, as a new contract, but rather as evidence of a modification of the contract which had been in force since April, 1894.

The deceased had not strictly complied with a condition of the contract to pay dues weekly in advance. The dues that were payable May 27, 1895, on the first certificate, were paid June 10, and none were afterwards paid. One of the provisions of the certificate provided that: “No benefit will be paid for death or disability accruing while said dues remain more than two weeks overdue.” But we think that the failure of the deceased to comply with this condition may fairly be inferred to have been waived by the company by the issuance of the new certificate of June 24, especially in view of the fact that the company must have considered the condition waived, when it paid the stipulated sum up to July 81, 1895.

We do not think that the contract contemplated the payment of dues during a period of disability, but even if it were otherwise, the company had in its hands money due the deceased from which it might have deducted the amount of his weekly dues

It is further urged that there was a failure upon the part of the deceased to comply with the condition relative to giving notice of disability; but between the 13th and 26th days of June, he gave notice to the company of his disability, upon one of the blanks furnished by the company. So long as that disability continued, from the same cause, we do not understand that the contract required further notice.

As to, the remaining objection, there is more difficulty. The certificate contains the following provision: “Benefits shall be paid only for such time as the insured is confined to the house, or totally disabled and under the care of a physician and incapacitated thereby from following some legitimate business or occupation.” The evidence in the case does not show that after July 31, and up to within a short time before his death, the deceased was confined to the house, or totally disabled, or under the care of a physician, or incapacitated thereby from following business or occupation.

We think that the evidence does show that the deceased, from the time of his first sickness until his death, suffered from the same disease, although the extent of his disability is not shown; and that from the time that he called upon a physician, who testified in the case he was totally disabled within the meaning of the contract. This length of time is somewhat indefinite; the physician says in his testimony, that it was three or four weeks before his death. For that time he was entitled to receive the sum mentioned and his administrator may recover it in this action.

Judgment for plaintiff for $30.