38 Wash. 31 | Wash. | 1905
On November 9, 1899, tbe appellant purchased an accident insurance policy from tbe respondent, by tbe terms of wliicb tbe respondent insured bim for a limited period against tbe effects of bodily injury caused solely by external, violent, and accidental means, agreeing to pay bim, if wholly disqualified from transacting business by any such injury, tbe sum of $25 per week for a period of fifty-two weeks, if bis disability continued so long. ■ Among tbe conditions of tbe policy was one to tbe effect that a failure, on tbe part of tbe insured or bis beneficiary, to give notice to tbe company
The grounds upon which the motion to dismiss were granted are not made to appear in the record, but it is gathered from the briefs of counsel that the decision wa3 rested on the ground that the appellant did not furnish proofs of his injury, within the period limited, after giving notice to the company that he had received an injury. We think, however, that the respondent was estopped to urge this defense. The policy provided that written notice should be given to the secretary of the company at New York, by the insured, or by the beneficiary under the policy, stating full particulars of the accident and injury, within ten days from the date of the injury. There wa3 evidence introduced at the trial tending to show that this notice was furnished, also letters from the secretary denying receiving timely notice of the accident, and denying liability on the part of the company solely on the ground that timely notice was not given it of the accident. So persistent was the secretary in asserting want of notice to be the ground of the refusal to pay, that, after the claim had been put into the hands, of attorneys, and the company had been notified that an action would be begun unless a settlement was made, he wrote' these attorneys insisting on the non-liability of the company be
We conclude, therefore, that the trial court erred in taking the case from the jury and dismissing the action. The judgment appealed from is reversed and the cause remanded with instructions to grant a new trial.