Emerson v. Old Line Life Insurance Co. of America , 190 Wis. 169 ( 1926 )

Vinje, C. J.

As to notice the policy provided:

“Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury. . . . Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice, and that notice was given as soon as it was reasonably possible.”

The case presents the question whether an injured person who has had an accident resulting in an internal injury may rely upon representations by reputable doctors that his injury or pain and suffering were not caused by the accident, though he himself, up to the time of receiving medical advice, believed his condition due to the accident. When it is borne in mind that notice is required to be given the insurer not only for the purpose of advising it that an injury has occurred but for the purpose of enabling it to ascertain whether other provisions of the policy calling for medical treatment are complied with, it is difficult to come to the conclusion that the insured is not justified in following the advice of reputable physicians whom he seasonably employs. There can be no claim in this case that plaintiff did not honestly believe his doctors as to the cause of his ailment after they examined him and gave their opinion. Nor can there be any claim that he did not employ reputable doctors. Even the Mayo clinic, upon the first examination, believed he was suffering from appendicitis. It was no doubt one of those by no means rare cases that could not be definitely determined till the patient was opened up. It appears that the next day after plaintiff was informed that his injury was due to the accident he gave written notice thereof. The fact that he stated that he did not know the nature of his injury till October 18th does not contradict the fact that he did not learn till November 23d that the injury was due to the accident.

In Sheafor v. Standard Acc. Ins. Co. 170 Wis. 307, 174 N. W. 916, it was at least inferentially held that the insured having an accident may, upon his doctor’s advice, properly delay giving notice of injury. The case at bar differs from the one just cited in that at and from the time of the accident the insured believed he had been seriously injured by his throw, wrench, and fall, while in the Sheafor Case he did not realize that there was any serious injury till a long time later, so the- two depend upon different facts as to the excuse for the delay in giving the notice. Here the insured could and would have given timely notice but for the medical advice given him. As soon as it was ascertained by an operation that the advice was wrong and he was informed of the error he sent the notice.

It is admittedly to the interest of the insurer that the insured should seek early medical aid after an injury. If he does so and is advised by reputable physicians that his injury is not referable to the accident, it would be strange to say that he cannot rely upon their opinion but must use his own. It is idle, useless, and expensive to consult doctors if you do not intend to follow their advice where there is nothing obviously wrong about it. If the condition of the injured person presents a fair case for medical judgment and that is honestly given by a reputable doctor, it justifies the insured in following it. For cases treating of this subject and tending to sustain the conclusions reached, see 7 A. L. R. 186, note, and especially on page 190.

In Hefner v. Fidelity & Cas. Co. (Tex. Civ. App. 1913) 160 S. W. 330, by a vote of two to one, the court held under the facts of the case that the notice was too late. But there it was not given till ten months after the accident. The insured stepped into a hole in the nighttime, fell, and received a severe strain or wrench. It appeared that at least two months before he gave notice he was informed by doctors whom he consulted that his injury was due to a strain or wrench. His main excuse for not sending notice was that he hoped he would get better, and he employed a number of doctors before he sent notice and finally lost the use of his legs. The case at bar differs materially from the one just cited, and, a jury having been waived, a finding by the court that the notice was given within the provisions of the policy cannot be set aside.

The policy also contained this condition: “Provided that indemnity is payable under this part only for such period as the insured is under the regular treatment of a legally qualified physician or surgeon at least once in each seven days.”

It is claimed that this condition of the policy wras not complied with after he left the Mayo clinic. The plaintiff testified that he had been under the charge, direction, and treatment of'Dr. Masson, of the Mayo clinic, from the time he left it in January up to the time of the trial, and that he, plaintiff, bandaged himself every morning, and that pus had flowed from the time he left the hospital up to the time of the trial. There is no evidence to the contrary. We think the trial court was justified in finding that there had been a compliance with the quoted portion of the policy.

By the Court, — Judgment affirmed.