Breeden v. Ætna Life Insurance

23 S.D. 417 | S.D. | 1909

McCOY, J.

From the record in this case it appears that in March, 1904, the defendant, .¿Etna Fife Insurance Company, issued to plaintiff, James K. Breeden, its policy of accident insurance, and that thereafter while said policy was in force, on the nth day of November, 1904, the plaintiff met with an accident, being thrown from his buggy and injured, and rendering plaintiff wholly helpless for the space of eight weeks, from November 11, 1904, to January 6, 1905, and that from1 the 7th day of January; 1905, to July 7, 1905, plaintiff for a period of 26 weeks was partially disabled, and, under. the provisions of -sái'd policy, plaintiff became entitled to indemnity in, such stated sums per weeks as' were-therein provided. On Fébruary 26; 1906, plaintiff • made and furnished to (defendant, written proofs-of his disability and the duration thereof. Clause 16 of said policy provides as follows: “Immediate notice in writing of any accident or injury shall be given to;said company at Hartford, Conn., .with -full particulars -and name and address of the insured, and unless affirmative proof of‘the partial or total disability, and that the same- was' the ’result- of external violence or accidental means- is so furnished'within two nion-t-hs 'from the termination of.- total- or- partial disability, the said company shall be released-from all--liability for the-payment of-any claim based bn said insurance.policy.”- The defendant' contends that, "by reason of- the plaintiff having failed to furnish proof of disability within the time specified in said clause 16, it has -become released-, from all obligation to pay plaintiff. , Plaintiff, contends that, under -the evidence in this case, defendant should be- held to. have waived -,the time limit provision of said clause 1,6. ...

It apears in the evidence: That one James Door at the timé of the issuance of said policy, and up until April, 1906, was acting as the general managing agent of defendant, and that one ‘ Gleckler during the years 1904, 1905, -arid 1906 was acting as local agent of defendant at Pierre, where plaintiff resided. That the policy was solicited by and premiums paid to Gleckler, arid that the- policy was issued by defendant and countersigned by Door, general agent. It appears that Door and defendant were duly notified'in.writing of the accident immediately after its occurrence. It also appears that plaintiff wrote to Door'prior to August 14, 1905, -and again on that date for blanks on which to make proof of claim, 'thus indicating to defendant that he intended to present his claim under this policy, and that Door immediately sent the blanks, and that on February 26, 1906, plaintiff furnished to defendant formal written proofs, which were retained by defendant without objection, and that, immediately after the receipt of such proofs, Door wrote Gleckler to further investigate plaintiff’s disability, and the duration thereof, and inclosed to Gleckler, with the letter, a blank proof filled out, except as to length of time of disability, and requested Gleckler to ascertain the length of time of the disability and fill in the blank, and Gleckler, upon receipt of this letter, immediately saw plaintiff and ascertained the length of time, and also procured from the attending physician a certificate as to the duration of plaintiff’s disability, and forwarded the same to Door during the month of March, 1906. The position is not tenable that the writing of this letter by Door to Gleckler immediately after the furnishing of proofs by plaintiff was independent investigation on the part of defendant. About April 7, 1906, defendant through its agent Door notified plaintiff that payment was refused on the ground that proof had not been furnished within two months after the termination of the partial disability. A failure to furnish the notice of accident or proofs of injury within the required time may be waived by the insurer or its general agent. Waiver may consist of some act on the part of the insurer, or its general agents, inconsistent with its claim that the policy bas become inoperative through the failure to furnish the proof of loss within • the time required, such as retaining the proofs furnished without -objection;- or requiring further information or additional proofs, 1 Cyc. 278; Standard Ins. Co. v. Davis, 59 Kan. 521, 53 Pac. 856; Peabody v. Fraternal Acc. Soc., 89 Me. 96, 35 Atl. 1020; Moore v. Wildey Cas. Co., 176 Mass. 418, 57 N. E. 673; Holm v. Inter-State Cas. Co., 115 Mich. 79, 72 N. W. 1105; Martin v. Manufacturers Indemnity Co., 151 N. Y. 94, 45 N. E. 377; Trippe v. Provident Fund Soc., 140 N. Y. 23, 35 N. E. 316, 22 L. R. A. 432; Meyers v. Maryland Cas. Co., 123 Mo. App. 682, 101 S. W. 124; Young v. Railway Mail Ass’n, 126 Mo. App. 325, 103 S. W. 557; Spring Garden Ins. Co. v. Whayland, 103 Md. 699, 64 Atl. 925. Conditions as to time limit such as contained in clause 16 of the policy in question should be strictly construed against the insurer. Odd Fellows Acc. Soc. v. Earle, 70 Fed. 16, 34 U. S. App. 285, 16 C. C. A. 596; Edge v. St. F. & M. Ins. Co., 20 S. D. 190, 105 N. W. 281. In a case like this, where there could have been no possible prejudice to any right of the insurer by reason of the delay in furnishing proofs, where the notice of the accident was timely given, and where the insurer had every reason to know and believe that plaintiff intended to present his claim, slight evidence of waiver should prevail. National Masonic Acc. Ass’n v. McBride, 162 Ind. 379, 70 N. E. 483. When general managing agent, Door, wrote Gleckler .to procure further information and additional proofs and fill in blanks, after the two months time limit had expired, and when the proofs sent in by plaintiff were retained by defendant without objection, these were all acts .inconsistent with the contention and theory of defendant that the policy had become inoperative through plaintiff’s failure to furnish 'the proofs within two months after termination of disability. Door being general managing agent of defendant, the defendant was bound by his acts notwithstanding the fact that the policy provided that “no agent has authority to waive or change any condition' of this policy.” Reed v. Continental Ins. Co., 65 Atl. 569; Ind. River Bank v. Hartford Ins. Co., 46 Fla. 283, 35 South. 228; Ohio Farmers’ Ins. Co. v. Vogle, 166 Ind. 239, 76 N. E. 977, 3 L. R. A. (N. S.) 966; Peter v. Plano, 21 S. D. 198, 110 N. W. 783.

Finding no error in the record, the judgment of the lower court is affirmed.