85 Vt. 305 | Vt. | 1912
This is assumpsit on a health and accident insurance policy, which provides that no claim thereunder shall be valid unless written notice is given to the company at Saginaw, Michigan, within twenty days from the date of injury or beginning of the illness for which claim is to be made. That date
The policy also provides that in case of disability, indemnity will be paid only for the time the assured is under the profesional care and attendance of a qualified physician or surgeon. The defendant excepted to the charge as to the length of time the plaintiff’s evidence tended to show that he was under such care and attendance, but as the exception is not briefed it is not considered.
The policy further provides that if the assured is disabled by accident or illness for more than one month, he or his representative shall, as a condition precedent to recovery thereunder, furnish every thirty days a report from his attending physician or surgeon, fully stating his condition and probable duration of his disability. There was nothing to show that this provision was complied with. But the plaintiff claimed that it was waived by the defendant’s letters of February 24 and March 9, 1904, in the former of which it wrote to its local agent in Brattleboro to the effect that as the plaintiff had not complied with the requirements of his policy, in respect of giving notice of the commencement of the disability for which he expected to make claim, it saw no reason why it should entertain his claim; and in the latter of which it wrote to its said agent that inasmuch as the conditions of the policy had been clearly violated, it did not feel that it should be held liable, and asked the agent to advise the plaintiff to that effect. The plaintiff had been disabled by his accident more than one month before the first of said letters was written, and the defendant requested the court to charge
It is further claimed that it was for the jury to say whether those letters amounted to a waiver. But that they did amount to a waiver was ruled before as a question of law, and that ruling is controlling now. Besides, the construction of writings, when ■once the facts necessary for fixing it have been ascertained, as they were here, none of them being in dispute, is for the court and not for the jury. Thayer, Prelim. Treat. Ev. 205, etseq.
Judgment affirmed.