Hummer v. Midland Casualty Co.

Ostrander, J.

(after stating the facts). Some of the contentions of appellant may be disposed of with little comment. It was not error to instruct the jury that the sending of the letter of February 9th and its receipt by defendant were established facts. It is true that the letter of February 9th was not produced by defendant upon notice to produce letters, and that it was stated by counsel at the trial that it was thought defendant never received it. A letter written by defendant to plaintiff states that the first information received by defendant of the alleged injury came in May with the proofs of claim, and a witness testified that there was in the files of defendant no evidence of an earlier notification. It appeared, too, that the defendant asked plaintiff to send them a copy of his letter of February 9th, and the request was refused, or ignored. But defendant’s witness also testified that the letter of February 13th, which purports to answer plaintiff’s letter of February 9th, and admits notice of a claimed injury to plaintiff’s eye, was written upon the stationery of the defendant, and that Mr. Cavanaugh, whose name is signed to it, was a clerk in defendant’s department. No error is assigned upon the introduction of the letters in evidence, and there is the evidence of the cashing by defendant of the check inclosed in plaintiff’s letter of February 9th. I find no testimony which raises an issue of fact upon the subject.

The court should have instructed the jury that plaintiff did not, as soon as possible after the accident, give defendant written notice of the same and the particulars thereof, and should not have instructed them that the provision in the policy for preliminary notice was inserted to protect defendant against fraud and misrepresentation, without saying more. The plaintiff’s testimony is conclusive evidence that he might earlier have notified defendant of his accident. It was therefore not for the jury to determine whether it was given as soon as possible and within a reasonable time. Plaintiff delayed for nearly five months to give any notice. On Wednesday, February 20th, if not before, he was advised by the pain he suffered that the injury to his eye was serious. He was in Chicago in December, in the latter part of that month, and in January he was looking after some of his business affairs. For this purpose he traveled from Grand Rapids to Holland, going down perhaps a dozen times. He was confined to his bed, he says, until about November 1st after which time he was about the house and began to go out of doors during the first half of November. What he did leads irresistibly to the conclusion that he was ignorant of the provisions of his contract, or careless or wilfully negligent about performing his duty thereunder, and that he gave, and intended to give, no preliminary notice of his injury and no notice until the result of the injury was pretty definitely known. With the notice he gave he asked for blanks for making proofs of claim and for advice concerning the amount he was entitled to receive. The provision in question was doubtless inserted in the contract to protect defendant from fraud and misrepresentation, but not for this purpose only. Defendant reserved the right to examine the person of the insured in case of injury. Its promise is to pay indemnity if the injury shall, within 100 days from the date of the accident, result in one of the losses specified. In the absence of the required notice, in the absence, as in this case, of any notice until 5 months after an injury is received, the defendant may not, perhaps, protect itself against a demand made in good faith by the insured or by his beneficiary. Was the loss of the eye sustained solely through accidental means? Did the loss occur within 100 days of the injury? These are matters about which it is the right of defendant under the contract to satisfy itself, without litigation, and, without regard to the good faith of the insured.

It was not reversible error for the court to reopen the case to learn the contents of the letter which accompanied the certificate of the physician. I do not appreciate the importance of the contents of that letter. The paper itself was a part of the proofs of loss, and should have been produced by defendant when it produced the proofs of loss pursuant to notice. If it had contained matter adverse to plaintiff’s right to recover, such matter might have been of value to defendant. But that proofs of loss were filed at some time is not disputed. They were not rejected as insufficient. The nature of the injury plaintiff suffered was proven by witnesses. So it seems to me to have been immaterial whether the letter had become detached and lost or inadvertently mislaid, unless the defendant undertook to predicate some right upon its nonappearance. And I cannot conceive that what was done after discovery of its absence prejudiced defendant.

Appellant’s sixth contention is based upon a ruling admitting answer to the question asked Dr. Welsh:

“Now, during those months of September, October, November, and December was Mr. Hummer incapacitated from attending to his business?”

The objection was that the question called for a conclusion. There is no merit in this. The witness appeared to have knowledge upon the subject. Whether his unqualified affirmative answer was precisely true is another matter.

The third and tenth of the contentions of appellant must be sustained. The court advised the jury that, if otherwise entitled to recover, plaintiff should be given $350, which is indemnity at the rate of $25 per week for 14 weeks. Assuming the accident, the foundation of plaintiff’s demand, occurred on September 16th, it is clear that plaintiff was not from that date thereby rendered continuously unable to perform his business duties. The disabling thing was the medical treatment of the injured member, and, while the defendant may be held liable for the loss of the eye resulting from such treatment, it is because of the original injury that liability for the result of treatment arises. I am of opinion, therefore, that upon this record the court should have advised the jury that plaintiff was not entitled to the weekly indemnity.

The questions made most important in argument are: First, whether defendant waived, or is estopped to assert, the failure to give the preliminary notice of the accident; second, whether final proofs of injury were seasonably made; and, third, whether there has been a proper determination of the fact that loss of the eye, the result of the injury, occurred within 100 days from the date of the accident.

The court instructed the jury that the proyision of the policy as to notice of injury must be complied with before liability could be found, unless the notice was waived. Waiver may be found from circumstances which show no intention of the insurer to complain that earlier notice was not given, and which indicate that the notice given is regarded as a sufficient performance of contract duty. This is especially true when, the testimony being all before the court, it does not appear that the failure to give earlier notice has prejudiced the insurer. I am of opinion that the court might properly have instructed the jury that under the particular contract waiver of the preliminary notice was established. Hohn v. Casualty Co., 115 Mich. 79 (72 N. W. 1105). As to the final, affirmative, proofs, the contract penalty for failure to file them is that no suit may be begun on the policy unless within one year from the date specified for filing them. Beyond this, it cannot be saidas matter of law that they were not filed within 60 days from the time plaintiff became satisfied about the result of his injury. There is testimony to support a finding that the loss of the eye occurred within 100 days from the date of the accident; that it was caused by the introduction of the acid into the eye, all attempts to avert the injury then caused having been unsuccessful.

With the exception noted, none of the errors committed upon the trial were prejudicial to defendant.

The judgment is too large by the sum of $350, and the interest on that sum at 5 per cent, from August 15,1912, to the date of the verdict. This plaintiff may remit and the judgment may stand affirmed for the sum remaining. Otherwise the case must go down for a new trial. In any event, a substantial reduction in the amount recovered having been secured, the defendant will recover costs of this court.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ. concurred.