61 S.E. 423 | S.C. | 1908
April 22, 1908. The opinion of the Court was delivered by The plaintiff obtained from the defendant company a policy of insurance against accident and sickness, dated 21st February, 1906, which contained these provisions: "Or, at the rate of fifty dollars per month for the number of consecutive days, after the first week, thatthe assured is necessarily and continuously confined withinthe house and therein regularly visited by a legally qualifiedphysician by reason of illness * * * ; or if during convalescence immediately following said confinement, or by reason of any non-confining illness, the assured shall be wholly and continuously disabled from performing every duty pertaining to any business or occupation, and require the regular attendance of such physician, the company will pay him indemnity at one-fifth the above for a period not exceeding two consecutive months. * * * Written notice of any injury, fatal or not fatal, or of any illness for whichclaim can be made, must be given to the company at Saginaw, Michigan, within ten days from date of accident orbeginning of illness. Failure on the part of the assured or the beneficiary to comply strictly with such notice requirement shall limit the liability of the company to one-fifth the amount which would otherwise be payable under this policy. *153
"An agent has no authority to change this policy nor to waive any of its conditions. Notice to or from any agent or knowledge acquired by him shall not be held to affect a change or waiver of this policy or any condition thereof. No assignment or change in this policy or waiver of any of its conditions shall be valid unless agreed to in writing by the president, vice-president or secretary of the company and indorsed hereon." We have italicized the words most important to the decision of the case.
In an action in a magistrate's court judgment in favor of the plaintiff was recovered for an illness. The plaintiff testified he became sick 16th August, 1906, and after being in bed thirty-one days, resumed work 10th October, 1906. The attendance of a physician did not begin until the 21st August. The plaintiff made no personal report of his illness to the insurance company until 28th September, 1906, but on 27th August he notified defendant's local collector, who, on the same day, mailed a letter to the company giving notice of the sickness.
We first consider the case on the theory adopted by the magistrate and the Circuit Court that the beginning of the illness contemplated by the policy was 16th August, the first day of plaintiff's sickness. The Circuit Court in affirming the judgment of the magistrate, held the provision of the policy above quoted, as to time in which notice of sickness should be given, to be without effect and void, because unreasonable.
We think this conclusion of the circuit judge was clearly erroneous. It concerns not only the constitutional rights, but in the highest degree the business prosperity of the people that freedom of contract should be preserved inviolate. It is true, freedom to contract is not unlimited, for the law-making branch of the government may impose such limitations as can be reasonably considered to be for the public health, safety or morals. Rose v. Harlee,
If the provision of the contract under consideration were improvident or foolish, that would be no ground for the courts to refuse to enforce it. Attempts by courts to relieve parties from onerous contracts merely because they have entered into them heedlessly and improvidently are not only without warrant of law, but against the public interest; for such attempts tend to impair that general confidence in the certainty of contractual relations upon which material prosperity depends. In addition to that, nothing so encourages and increases heedlessness and improvidence as the expectation of being relieved from their consequences.
But even if the Court could relieve against a contract merely because it contained clauses which, in the view of the Court, should be considered unequal or unreasonable, such judicial power could not be invoked in this case. The provision on which the defendant relies is not unreasonable, but, on the contrary, it is evident some such stipulation is necessary to the protection of the defendant, as an insurer against sickness, to enable it to investigate alleged illness, and thus protect itself against imposition. Of course the insured would be excused from giving the notice if, from sudden and extreme illness or other cause, it became impossible for him to comply with the contract. Stickley v. Ins.Co.,
The respondent relies on the case Woodmen Assoc. v.Pratt, 89 Am. Rep., 777, as authority for the proposition that where the contract provides for notice within a specified time, notice within a reasonable time is sufficient. That decision is rested almost entirely on the authority of cases like Edgefield Mfg. Co. v. Maryland Cas. Co.,
The plaintiff endeavors to sustain the judgment on the further ground that the notice, mailed on 27th August, was, in fact, within ten days from 16th August, 1906, the first day of any illness. The contract required written notice to be given "to the company at Saginaw, Michigan," but the deposit of the notice within the mail, properly addressed, within the required time, is in such case a sufficient compliance with the contract. The Court of Appeals of New York, the judges being divided, held it necessary to mail the notice in time for the company to receive it within the time limited. Peabody v. Satterlee
(N.Y.), 52 L.R.A., 956. But this Court has decided mailing within ten days to be within time and to give rise to the presumption that the notice reached the company.Sullivan v. Speights,
But notice was not received by the collector and by him given to the company until the 27th August, the eleventh day, excluding the 16th August, the day the sickness began. *156
The respondent contends, as the 26th was Sunday, it should not be counted. No authority has been cited to sustain this position, and we can find none. On the contrary, the rule is, as stated in Salley v. Ry. Co.,
The judgment of this Court is that the judgment of the Circuit Court be affirmed.