93 Neb. 685 | Neb. | 1913
Plaintiff sued to recover $90 which he alleged was due him under a policy of health insurance issued by the defendant company for two months’ disability by sickness from October 20, 1909, on the basis of $15 a month. He alleges defendant was duly notified of plaintiff’s illness as the policy provides. Defendant by its answer admits the existence of the contract, and pleads the failure of plaintiff to comply with the provisions of the policy with respect to notice and proofs. The policy requires that written notice of the commencement of sickness “must be mailed to the secretary of the company at Omaha, Nebraska, and failure to give such written notice within ten days after the date of such injury, or commencement of illness, shall invalidate any and all claims under this policy.” It also provides that “affirmative proof, verified by physician, must be filed with the company at Omaha, Nebraska, within one month from date of death, or loss of limb or sight, or termination of disability, otherwise all claims hereunder shall be forfeited to the company,” arid further provides, “if the insured is disabled by injury or illness for more than 30 days, he or his representative shall, as a. condition precedent to’ recovery hereunder, furnish the company, every 30 days, with a report in writ
As to the requirement of notice of a disability by illness for more than 30 days, the testimony shows that Dr. Ballard made out another notice on November 10 or 15 not upon a blank of the company. Plaintiff testified that after the first report was made he was requested by Mar-stellar to make out another, which wras done, and in the latter report he stated the time he had been sick, that he gave it to Marstellar in his office at Lincoln, and that he also left with Marstellar a notice made out by Dr. Jonas of Omaha; that no request was made for a further report or proof. Bigley testified that he helped plaintiff fill out the first notice, and that he wras instructed by Marstellar and Mr. Wolfle, the assistant secretary of the company, to leave proofs of injury and of recovery with Mr. Marstellar, and that Blunt know this. He also testified that Blunt showud him a second notice. Marstellar testified that
There is no competent proof in the record that the two notices necessary to comply with the terms of the policy, other than the preliminary notice, were ever given. It may be that the requisite notices were given, and that they are now in the hands of the defendant. If so, plaintiff is provided by the statute with the means to obtain the evidence, or, if unattainable, to supply the same by secondary proof. The requirements of the policy are not unreasonable, and it is not unjust nor unfair to the policyholder to require that information be communicated to the insurer at stated intervals as to the progress of the disability for which it will later be called upon to indemnify him, and that proof of the time of termination of his disability be furnished, so that the insurer may inquire
As to the second point urged by appellant, based upon the letter written to the insurance deputy by the defendant: The letter referred to is as follows: “Omaha, Nebr., Jan. 20, 1910. Mr. C. E. Pierce, Insurance Deputy, Lincoln, Nebraska. Dear Sir: Referring to your communication of the 18th inst., in re Newton E'. Blunt, the reason that Mr. Blunt’s claim was not allowed was that, according to his own and his doctor’s statements, he had no claim against this company. Very truly yours, National Fidelity & Casualty Co. George W. Wolfle, Manager Accident Dept. Received Jan. 22, 1910, Insurance Dept., Lincoln, Nebr.” There is no proof that this letter was written at Mr. Blunt’s suggestion, or that its contents were at once communicated to him, or that he knew of the general'denial of liability until after the time for filing proofs had expired. Of course, under these circumstances no waiver of proofs of loss can be predicated on this letter.
We think none of the authorities cited by appellant are applicable to the facts in this case, save as to the first notice and its delivery, and we agree with his contention in these respects.
We find no error in the record, and the judgment of the district court is
Affirmed.