23 S.D. 417 | S.D. | 1909
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. ...
Finding no error in the record, the judgment of the lower court is affirmed.