Hefner v. Fidelity & Casualty Co.

Chief Justice Harper and myself concur in the view that the motion for rehearing herein should be overruled. He is of the opinion that notice of the accident was not given within the time prescribed by the contract of insurance, this being the ground of affirmance assigned in the original opinion. For reasons hereinafter stated, I too, am inclined to the view that the notice came too late, and am of the further opinion that the case should be affirmed for a reason not set forth in the original opinion, and upon which I shall briefly state my views.

The suit is based upon that provision of the contract insuring against bodily injury sustained during the life of the policy and resulting directly, independently and exclusively of all other causes, in "immediate, continuous and total disability that prevents the Assured from performing any and every kind of duty pertaining to his occupation." I concur in the view expressed in the original opinion that the evidence discloses that as a result of an accident occurring on August 20, 1909, the Assured eventually became totally disabled from performing the duties pertaining to his occupation within the meaning of the contract. It is true that by applying the strict letter of the contract, the evidence does not disclose such a total disability as would prevent him from performing any and all duties incident to the practice of his profession, but I think the clause should be reasonably construed, and so construing the same, he has become totally disabled. A literal interpretation of the contract, with reference to this phase of the case, would require a complete loss of all physical power and mental capacity — in fact, it would scarcely happen that one could live and bring himself within the literal language of the contract.

It will be noted, however, that liability attaches not only in case of continuous and total disability, but the same must be an immediate result of the injury, as well. Appellant was a practising attorney and the undisputed evidence discloses that after the accident on August 20, 1909, he continued for several months to perform many of the duties incident and pertaining to the practice of law. He testified that for some months he was able to perform in a way, all of the duties incident to his profession, except that he was unable to do anything requiring continuous, physical exertion, such as working in the library, examining and collating authorities, and was unable alone to conduct the trial of important and long, drawn-out cases. He states that he attended his office with more or less regularity until March or April, 1910, and did regularly all of the things to be done with the exception noted; that while he labored under difficulty, he nevertheless, went ahead and did it. He states that he did considerable work in the office and assisted in the trial of several cases after the accident, and made one or two trips in a buggy to Ward county with his law partner. He was also present at the trial of a case in El Paso County, which continued for nine days. He took no active part in the conduct of this trial, but made an argument to the jury. He was also present and took part in the trial of a case referred to in the evidence as the Beason-McKenzie case. It seems that Appellant was also the County Judge of Reeves County and presided over the October Term, 1909, and the January Term, 1910. The facts detailed above are undisputed and are testified to by Appellant himself, and to my mind, it clearly shows that his bodily injury sustained on August 20, 1909 can in no wise be considered such an "immediate" total disability as is covered by the contract. Williams v. Preferred, etc., (Ga.), 17 S.W. 982; Laventhal v. Fidelity, etc., (Cal.),98 P. 1075; Continental Casualty Co. v. Ogburn (Ala.),57 So. 852; Pepper v. Order, etc., (Ky.), 69 S.W. 956; Merrill v. Ins. Co. (Wis.), 64 N.W. 1039.

Adverting now to the matter of the notice of the accident given to the company, it will be seen from what has been said above that recovery can be predicated only upon the theory that the injury resulted in an immediate disability. Appellant stated in his testimony that he had at all times attributed his condition to the fall which he received on August 20, 1909, and justifies his failure to give notice to the Company because of the advice of his physicians that his injuries were slight and attributable to other conditions. But if there was an immediate and total disability from the date of the accident, I do not think that the delay until June 15, 1910, in giving the written notice provided for can be excused because of the advice of physicians. The right to demand this notice is an important and valuable one to the Company, and if there was an immediate and total disability, the cause of which Appellant had reasonable ground to believe, and did believe, was due to his injury, it was his duty to give the notice within a reasonable time. The delay noted was such an unreasonable one as would bar his right.

There is not the slightest intimation of any fraud or deception whatever in the claim asserted in this cause, nor any contention that the deplorable physical condition of Appellant is not due to the bodily injury which he sustained on August 20, 1909, and it is a case where the facts loudly cry for relief against the strict and harsh provisions of the contract; but considerations of this kind can have no determining influence in the decision of the case, and for the reasons indicated, I concur in the view that the motion for rehearing should be overruled.

Chief Justice Harper concurs in the views here expressed.

DISSENTING OPINION.