98 Mo. App. 410 | Mo. Ct. App. | 1903
This is an áction on a policy of insurance against accident and sickness made by the Northwestern Benevolent Society to the plaintiff on the 16th day of June, 1900. The defendant is the successor of said Northwestern Benevolent Society. By said policy the plaintiff was insured against loss by accident or sickness and in case of immediate or total disability by reason of injury suffered by him, so as to cause total loss of time and wholly prevent him from attending to or engaging in any business or occupation, a benefit of forty dollars per month, or at that rate for any part of a month should be paid to him for such total disability, and also a partial indemnity at one-fourth of said monthly rate for loss of time, by reason of a material but not a total disability not resulting immediately after an accident; provided that the total of time for which indemnity shall be paid, for any one disabling injury shall not exceed one year, and only while the insured is under the strict care of a legally qualified surgeon. As the suit was instituted in a justice’s court defendant filed no answer, but judging from what appears in the record it denies all liability. The only evidence of the manner of plaintiff’s injury which he claims occurred on the 15th day of October, 1900, in the State of Texas, was his own. His statement was that he got on a freight train at Dallas for the purpose of going to Hearne, Texas; that when the train got somewhere between forty and .seventy-five miles from Dallas the engine gave out at night on a curve at which time he heard a passenger train coming and apprehending danger of a collision he jumped off into a ditch about eight feet deep; that in alighting he was injured in his breast and ankle; and that afterwards he did not know what happened; that he was taken out of the ditch by some one unknown to him, and taken to a farmhouse where he stayed about six or seven weeks. He says that then he still did not know anything — did not know where he was. He states that after he halfway came to his senses he thought of his
The defendant introduced several physicians at the trial whose testimony was to the effect that while
Defendant contends mainly that the plaintiff was not entitled to recover for the following reasons, viz.: first, because he did not give defendant written notice within ten days after the happening of the accident and make his proof of loss as required by the terms of the policy; second, because he did not have a surgeon in strict attendance upon himself during the time of his injury; third, because the allegations of the petition are that he was injured in a railroad wreck, whereas the proof shows that there was no such wreck at the time.
The latter objection only amounts to a variance between the proof and the allegations of the petition, to which defendant should have called the attention of the court at the time, as provided by section 655, Revised Statutes 1899'; and having failed to do so, it has waived all error in that respect.
In Whittemore v. Sills, 76 Mo. App. 248, this court held: “While the law never imposes upon any one the duty to perform what is impossible, it allows people to enter into contracts as they please and the interference of third persons will not excuse performance.” And that, ‘ ‘when the law creates a duty and the party is disabled to’ perform it, without any default in him, and he has no remedy over, the law will excuse him. But when a party by his own contract, creates a charge or duty
It was one of the conditions precedent to plaintiff’s right of recovery that he should give the requisite notice of the accident within ten days after the happening thereof. This was not done in this case because plaintiff’s evidence tended to show that he was rendered incapable of complying with that condition of his policy by reason of his mental incapacity caused by the accident itself. The plaintiff contends, and we think justly, that the foregoing rule does not apply to a case of this kind, for it certainly was not in the contemplation of the parties that if the accident for which the indemnity was provided should render the insured incapable of giving such notice that thereby defendant would escape liability. It is a rule of law in this State that “Forfeitures in insurance policies are not favored and conditions which effect such forfeitures should be strongly construed against the party making them.” And it was held that where “an accident policy provided that in case of an injury totally disabling insured from carrying on his work, notice of the accident should immediately be given the company, and in case such injuries caused the death of the injured, notice should be given in like manner, that it was not necessary where the injuries caused death but did not totally disable the insured at the time from working, to give notice of the time it occurred, as the policy omitted to provide for any such notice.” McFarland v. Accident Ins. Co., 124 Mo. 204. The case under consideration is similar on principle, as the policy fails to provide for such a condition as that which resulted to the plaintiff from the accident itself.
It was one of the conditions imposed by the by-laws of the defendant and which the plaintiff accepted as a
It is true that the court at the instance of defendant gave instruction number four which limited his right to recover for only such time as he was under the strict care of a qualified surgeon but the court also gave instruction number four on behalf of plaintiff allowing him to recover for the entire time he was wholly prevented by his injuries from engaging in business. This is claimed as prejudicial error and no doubt was, as the action was commenced in January, 1901, less than two months from the time that the plaintiff first had the care of a surgeon, whereas plaintiff recovered for the sum of $120, which amounted to an indemnity under the policy for a period of three months. The jury evidently disregarded defendant’s instruction, which was the law, and followed that of plaintiff, which, as we have seen, was not the law of the case.
During the argument to the jury the counsel for plaintiff was reading from a law report an extract from a decision when defendant’s counsel objected to his action in so doing, whereupon the court after ascertaining that the book in question was a law report caused the said counsel to desist from further reading from said report, and instructed the jury to disregard what it had already heard. The court did all that could be done
The defendant asked the court to define the term “strict care” as used in the policy, as “immediate care,” which the court refused because the definition would not enlighten the jury in that respect. The term “strict care” has no technical significance, but is to be interpreted as the language is usually understood.
The defendant contends that plaintiff should have been required to prove that he made proper proof of loss of time, as a condition precedent to his right of recovery. As it was shown that defendant upon receiving notice of the accident in question denied all liability under the policy, it waived such proof. The law does not require the doing of an unnecessary act. Hoffman v. Acc. Ins. Co., 56 Mo. App. 301. The further point is made that it was not proved that the defendant had assumed the liabilities of the Northwestern Benevolent Society. As this proof can be supplied on a trial anew it has no significance at present. For the reasons given, the cause is reversed and remanded.