Crenshaw v. Pacific Mutual Life Insurance , 63 Mo. App. 678 ( 1895 )

Ellison, J.

This is a suit on an accident insurance policy issued to plaintiff by defendant, wherein plaintiff seeks to recover for thirty weeks’ disability at $10 per week, as stipulated in the policy, for an accidental injury while engaged in work at the Armour packing house. He recovered in the trial court.

The only question necessary to consider on this appeal is the question of notice and waiver thereof. The policy contains, among others, the following provision: “The insured agrees to use due diligence for personal safety and protection, and that the company shall have immediate written notice, with full particulars, of any accident, and to allow the medical adviser of the company to examine the person or body of the insured, in respect to alleged injury.” It was shown in the evidence that the plaintiff’s wife was authorized by him to notify the company, and she states that she, on the day of the injury, notified the company’s physician, by sending him a note by a boy named Cook.She does not state what the notice was, but that the physician came next day to see plaintiff. Cook testified that he delivered the note at the physician’s office. This was all the notice given, and we regard it as insufficient. Notice to the defendant’s surgeon, or physician, was not notice to the company, within the contemplation of the policy. He had no authority, as such, physician, to receive notice for the company. The trial court took the same view and instructed the jury that such notice was not sufficient, but submitted a . question of waiver of notice in the following instruction:

“You are instructed that if you believe from the evidence that Motley, the. agent of the defendant, furnished the plaintiff with blanks to make out his proof of loss, such act upon the part of said agent would constitute waiver of notice.”

The evidence in respect to furnishing blanks for proofs was that, some three months, or more, after the accident, the plaintiff called on Motley, defendant’s general agent, who resided in the same city with plaintiff, and received from him the blank proofs. But this did not justify the court in declaring, as a matter of law, that such action was a waiver of notice. If the jury believed that such action, in view of all the circumstances of the case, was reasonably calculated to lead plaintiff, as a reasonable man, into the belief that no formal notice was required, and he, in consequence thereof, went to the trouble and expense of getting up proofs, then defendant would be held to have waived the notice. Waiver is something in the nature of an estoppel, and if defendant thus led plaintiff into additional trouble and expense, it would not be permitted afterward to interpose a want of notice. Bolan v. Ins. Co., 58 Mo. App. 225; Gale v. Ins. Co., 33 Mo. App. 664; Grigsby v. Ins. Co., 40 Mo. App. 276; Cohn v. Ins. Co., 62 Mo. App. 271.

This seems to be the rule as to proofs of loss in fire insurance, and it would, perhaps, apply with moi’e directness to a case of mere notice that an accident had happened. It appears, though not as fully as it might, that the general agent’s action, and the position he took in relation to plaintiff’s claim, in other matters than the mere furnishing blank proofs, may also have had a tendency tó show a waiver of notice, though of this we can not make a ruling, since the agent’s action is not clearly depicted in the record preserved.

Since the case must be retried, we will refer to a question relating to the admission of evidence. There were a number of ex parte statements máde as to the accident and the resulting condition of plaintiff. These are proper merely to show that the requirement of the policy as to a statement of particulars had been complied with, and their admission should be confined to that matter. Newmark v. Ins. Co., 30 Mo. 160. But it seems that it is the duty of defendant, if he wishes the jury cautioned in this respect, to ask an instruc-, tion from the court, limiting the effect of such evidence. In this case, however, the objections urged by defendant, at the trial, to the admission of these papers, show that they were being offered as evidence generally, to make out plaintiff’s case, and under these circumstances, they were admitted, without being limited, over defendant’s objection. Defendant called attention to the fact that they were so offered, and objected to them on that, among other grounds. In admitting them under such circumstances, it was the duty of the court to limit the effect of the proof and the reason of its admission. There can scarcely be a doubt that, under the circumstances surrounding their admission, the jury must have understood the court as holding them to be legal evidence in proof of plaintiff’s case generally.

It seems from the date of the statements of the particulars of the accident required by the policy, that they were furnished on July 1, 1893, some four months after plaintiff claims that defendant waived the notice, which, we understand to have been in March. It will be observed that thé policy calls for notice with 11 full particulars” of the accident. We can very well see how the waiver of notice might occur in the manner herein commented upon, and that the waiver of notice, in the manner indicated, necessarily embraced a waiver of the particulars of the accident, not having been presented up to that time. But the very acts of defendant’s agent relied upon here by plaintiff, as showing a waiver of notice and of particulars up to that time, show that the defendant was insisting on the particulars and only waiving their not having been furnished sooner, for those acts consisted mainly in furnishing blanks on which to state the particulars. We discover nothing in the case tending to show that plaintiff should have four months’ additional time to furnish the particulars. In other words, the fact that defendant may have been willing to receive the particulars at the time its agent furnished the blanks, or in a reasonable time thereafter, by no means shows that it would receive them four months thereafter; thus allowing plaintiff to do, at the end of seven months, what he was required to do immediately. But, so far as the record shows, no objection was made on this ground, and we only refer to the matter, that the facts in relation thereto may be considered on another trial.

The verdict in this case was for $300 and' interest, and it was shown that plaintiff had, on a prior occasion, after obtaining this policy, met with an accident, for which he presented, and was allowed, a claim of $41.43. Defendant now suggests that, since the policy was for one year’s duration, and since it provided as indemnity “the sum of ten dollars per week,” for a period “not exceeding thirty consecutive weeks, for the immediate, continuous, and total loss of such business time as may necessarily result from such injuries;’’that under no circumstances, can there be paid as indemnity, a greater sum than $300; and that, therefore, plaintiff should not have been allowed to recover more than $300, less the $41.43, paid him on account of the first accident. We do not think this the proper construction of the policy. The policy limits the amount of the indemnity for any one accident. Otherwise, if the full limit of the amount should be paid for an accident happening soon after obtaining the policy, the assured would be without' protection for the balance of the year. The evident meaning of the policy is that the assured shall have protection for successive- accidents, which may happen to him during the period covered by the policy.

The judgment will be reversed and cause remanded.

All concur.