| Vt. | Feb 7, 1910
This is an action to recover under an accident policy, and comes here on the plaintiff’s exception to the action of the court below in ordering a verdict for the defendant.
The plaintiff’s evidence tended to show that he suffered an accidental injury of the character specified in the policy on the 31st day of December, 1903; that a few days later, he visited Dr. John F. Butler for professional advice and treatment. That he then showed Dr. Butler his policy, and asked him to notify the company, as he, the plaintiff, could not read or write. That thereupon, the doctor wrote a letter to the defendant notifying it of the plaintiff’s injury, which letter was sealed, addressed, properly stamped and deposited in the post-office. That shortly after, the plaintiff received from the company, a blank which was admitted in evidence at the trial and called the “preliminary ■notice.” That this blank was subsequently filled out and returned to the company.
One paragraph of the policy reads as follows: “ (i) No claim hereunder shall be valid unless written notice is given to the company at Saginaw, Michigan, within twenty days from date of injury or beginning of illness for which claim is to be made (notice given to any agent shall not constitute notice to the
I. The defendant insists that the notice of injury required by the first clause of this paragraph was not seasonably furnished, and therefore the action cannot be maintained. This requirement is not to be extended by construction. Forfeitures are not favored, and a construction which will result in a loss of the indemnity contracted for will not be adopted except to give effect to plain requirements of the policy. Woodman’s Acc. Asso. v. Byers, (Neb.) 55 L. R. A. 291. It is apparent that the notice called for is not necessarily a formal document. It must be in writing, and it may safely be assumed that it should inform the company of the fact that the assured has received accidental, injuries. It may as well be given by another at the assured’s request as by the assured himself; May Ins. §463, even by the company’s agent. Powers v. Ins. Co., 68 Vt. 390" court="Vt." date_filed="1896-01-15" href="https://app.midpage.ai/document/powers-v-new-england-fire-insurance-6584639?utm_source=webapp" opinion_id="6584639">68 Vt. 390. The “preliminary notice” received in evidence is nothing which the policy required to be furnished. It is an elaborate statement, not only of the circumstances surrounding the accident and the nature of the injury, but many other facts only remotely, if at all, related to the matter — like the assured’s age, weight,- height, habits, to whom he paid his last premium, and so forth. It also contains a surgeon’s statement covering fifteen printed-questions regarding the claimant and his accident. As the case stands, the letter which Dr. Butler wrote the company was a full compliance with the requirement for notice, and the furnishing of the “preliminary notice” was entirely gratuitous on the part of the plaintiff. If this letter was of a different character than the plaintiff’s evidence tended to show, the defendant should have produced it; for it seems pretty certain it was received, since the company promptly forwarded the “preliminary notice” as hereinbefore stated.
In reaching this conclusion, we construe the statement in the bill of exceptions that this letter was sent by Dr. Butler “a few days” after the injury as meaning that it was sent within
The plaintiff, then, having complied with this requirement, was not to be prejudiced by his subsequent action in filling out and forwarding the “preliminary notice.” By sending it, on February 9th, through Mr. Jenne, a local agent, he did nothing to deprive himself of the benefit of Dr. Butler’s letter.
II. On receipt of the “preliminary notice” from Mr. Jenne — and on February 24th — the company, through its adjuster, wrote him acknowledging its receipt, and saying: “Under the conditions of his [plaintiff’s] policy, it is necessary that notice be given this company within ten days of the commencement of any disability for which he expects to make claim. We regret this is the case, and in view of his notice being late, we see no reason why we should entertain the claim at this time.”
Again on March 9, the company in like manner wrote Mr. Jenne, and after referring to the delay in the receipt of the notice, said: “Inasmuch as the conditions of the policy have been clearly violated in this case, thus giving us no opportunity to investigate the merits of the claim, we do not feel that we should be held liable and would thank you to advise Mr. Mellen to this effect. ’ ’
These letters amount to a denial of liability and refusal to pay predicated upon the alleged failure of the assured seasonably to give notice. To be sure the letters are couched in polite terms, but the true meaning is as apparent as though it was expressed in more direct and positive language. If there could be any doubt about this, it would be dispelled by the company’s letter under date of March 31, to Mr. York, their agent at Keene, in which reference is made to this claim and to the alleged fact that notice was not seasonably received, which reference is followed by this statement “we denied liability through agent Jenne on the ground that notice had not been given within the required time.” All of these letters were written during the period of the plaintiff’s disability and before the time for filing proofs of loss had arrived. At least this is our understanding of the case; and here again it makes no difference with the result,
In the circumstances, this denial of liability was a waiver of proofs of loss. It was equivalent to saying to the plaintiff that the company would not pay if such proofs were furnished. Therefore a compliance with that provision of the policy would be an idle formality which the law will not require. May, Ins. §469; Metropolitan Acc. Asso. v. Froiland, (Ill.) 52 Am. St. Rep. 359; Ins. Co. v. Vogel, 166 Ind. 239" court="Ind." date_filed="1906-02-23" href="https://app.midpage.ai/document/ohio-farmers-insurance-v-vogel-7055165?utm_source=webapp" opinion_id="7055165">166 Ind. 239, 117 Am. St. Rep. 382; Phenix Ins. Co. v. Kerr, 66 L. R. A. 569; Knickerbocker Life Ins. Co. v. Pendleton, U. S. 28 L. Ed. 866" court="SCOTUS" date_filed="1884-12-15" href="https://app.midpage.ai/document/knickerbocker-life-insurance-v-pendleton-91245?utm_source=webapp" opinion_id="91245">28 L. Ed. 866; Frost v. Ins. Co., 77 Vt. 407" court="Vt." date_filed="1905-05-18" href="https://app.midpage.ai/document/frost-v-north-british--mercantile-insurance-6585565?utm_source=webapp" opinion_id="6585565">77 Vt. 407; 11 Dec. Dig. "Insurance” §559.
Whether or not this waiver could have been retracted or recalled at any time before the period for filing proofs of loss had expired, we need not inquire, for there is nothing to indicate that this was attempted; it is certain that it could not be recalled after that period expired. By it, the rights and liabilities of the parties at once became fixed, and, so far at least as the plaintiff is concerned, were not affected by any subsequent treaty which resulted in an attempt to file such proofs.
III. It follows that so far as we are here concerned, the proofs actually filed are only important on the question of fraud and false swearing — which the defendant relied upon as one ground of his motion for a verdict. On this point it is enough to say that the mere fact that the proofs of loss in some respects contradict the statements in the "preliminary proof” is not enough, standing alone, to establish the fact of fraud or false swearing. Though the statements, or some of them, were false in fact, they may have been made in good faith. Mosley v. Ins. Co., 55 Vt. 142" court="Vt." date_filed="1882-10-15" href="https://app.midpage.ai/document/mosley-v-vermont-mutual-fire-insurance-6581899?utm_source=webapp" opinion_id="6581899">55 Vt. 142. The most that could be claimed is that these discrepancies, if any existed, made a question for the jury on the point referred to.
IY. Nor was the plaintiff required to comply with the provision on the back of the policy regarding a report from his attending physician. This requirement also was waived by the denial of liability. Chicago etc. R. Co. v. Gardner, 83 Ill. App. 118" court="Ill. App. Ct." date_filed="1899-06-03" href="https://app.midpage.ai/document/chicago--e-i-r-r-v-garner-7000125?utm_source=webapp" opinion_id="7000125">83 Ill. App. 118.
Y. The plaintiff was not necessarily limited in his recovery to the period of disability shown by the proofs filed. Hohn v. Inter-State Casualty Co., 115 Mich. 79" court="Mich." date_filed="1897-11-23" href="https://app.midpage.ai/document/hohn-v-inter-state-casualty-co-7939238?utm_source=webapp" opinion_id="7939238">115 Mich. 79; Cordery v. Ins. Co.,
Judgment reversed and cause remanded. -