87 Vt. 128 | Vt. | 1913
The accident policy which the plaintiff held in the defendant company contained a provision which, read in connection with P. S. 4823, limited the period within which a suit thereon could be brought to one year from the date of the accident on which it was predicated. This policy was issued October 19, 1908, and on the twenty-first the plaintiff suffered the accidental injuries which form the basis of this suit. He seasonably filed with the defendant proofs of his injury and his
This record presents a typical case of waiver under this rule. It shows in unmistakable terms that the company, with full knowledge, treated the policy as valid; that it acted upon it; and that it required the plaintiff to go to trouble and expense under it, on the assurance that the company would thereupon re-open his case.
But the defendant says that our own cases stand in the way of this result, and calls attention to Williams v. Vt. Mutual Fire Ins. Co., 20 Vt. 222; Wilson v. Aetna Ins. Co., 27 Vt. 102; Higgins v. Windsor County Mut. Fire Ins. Co., 54 Vt. 271, and Morrill v. N. E. Fire Ins. Co., 71 Vt. 281. Of these, only the first-named requires special consideration, for the others are manifestly no authority for the defendant’s position. The Williams case was decided in 1848, and it was held that the cause of action upon the fire policy there involved having become barred by a limitation in the charter of the company could not be revived by an acknowledgment or new promise. It is apparent
The policy contains a provision which, so far as need be recited, is as follows: “In the event of * * disability * * due wholly or in part to, or resulting directly or indirectly from # * * hernia * * cancer or any chronic disease commencing or appearing after this policy has been maintained in continuous force for sixty days preceding, * * then * * the limit of the company’s liability shall be one-third of the amount that would otherwise be payable under this policy.”
As we have seen, the plaintiff’s injury was received on the second day after the policy was issued; one of its immediate results was a hernia. The parties disagree as to the effect of the foregoing provision on the amount recoverable. Construing the language of this paragraph against the company, as we are bound to do, Brink v. Ins. Co., 49 Vt. 442, Mosley v. Vt. Mut. Fire Ins. Co., 55 Vt. 142, the clause regarding the sixty days relates to and modifies the word “hernia.” Indeed, counsel for the defendant so construes it in his brief; and he says that the injury to the plaintiff comes within the excepting clause, “which,” he says, “when fairly construed, is this: For disability on account of- hernia occurring within sixty days from the date of the policy, no liability on the company; hence no right of action.” And if the hernia occurs after the sixty days, one-third indemnity.
But this cannot be so. The clause only mentions hernias which occur after the sixty days; those that occur within the sixty days are not alluded to at all; and so they stand like other injuries. The result is, that for hernia which results within the sixty days, the policy provides full indemnity.
The findings show that the plaintiff was totally disabled for four months and seven days, and partially disabled for five months. His total disability calls for $105.83, and his partial disability for $62.50, — or $168.33 in all. To this should be added interest from October 24, 1908, the date on which the company rejected the claim.
Judgment reversed and judgment rendered for the plaintiff to recover $168.33 with interest thereon from October 24, 1908.